Flesh v. Lindsay

• Decision Date: 14 March 1893
• Citation: 115 Mo. 1,21 S.W. 907
• Parties: FLESH et al. v. LINDSAY et al.
• Court: Missouri Supreme Court

21 S.W. 907

115 Mo. 1

FLESH et al. v. LINDSAY et al.

Supreme Court of Missouri, Division No. 2.

March 14, 1893.

MARRIED WOMEN — LIABILITY FOR TORTS — OWNERSHIP OF PROPERTY.

1. Under Rev. St. 1889, § 6868, providing that the rents from a married woman's land, and money arising from a sale thereof, and the interest of her husband in her right to real estate belonging to her before her marriage or acquired in any manner since coverture, shall be exempt from liability for the husband's debts, and that he cannot convey any interest in her land unless she joins him in executing the conveyance, provided that the annual products thereof shall be liable for the husband's debts contracted for necessaries for the wife and family, the husband is not deprived of his right to possession of the wife's land, and where repairs made on a wife's building under supervision of her husband, and with her knowledge and consent, are done so negligently as to cause injury to an adjoining building, husband and wife are jointly liable.

2. Though a married woman cannot have an "agent" with respect to her property, the mere fact that she is permitted by statute to own property in fee implies that she may improve or repair it, and for that purpose she may, therefore, employ servants, for whose negligence she and her husband will be jointly liable.

3. In an action against a husband and wife

to recover for injuries to premises caused by the negligent repair of premises owned by the wife, an instruction that if F. was the wife's agent in causing the repair thereof it was her act, and she was responsible therefor as though she had the contract for their alteration and repair in person, is erroneous, since a married woman can have no agent.

Appeal from St. Louis circuit court; L. B. Valliant, Judge.

Action by Matthew N. Flesh and another against Jane Lindsay and another to recover for damages to plaintiffs' building through defendants' alleged negligence. There was judgment for plaintiffs against defendant Jane Lindsay, and defendants appeal. Reversed.

Boyle & Adams, for appellants. Seneca N. Taylor, for respondents.

BURGESS, J.

This is a suit against Jane Lindsay and her husband, Andrew J. Lindsay, for damages alleged to have been sustained by plaintiffs by reason of wrongful acts alleged to have been committed by defendants in March, 1887. The petition alleges that plaintiffs, who were copartners under the name of Flesh & Mook, were lessees and occupants of a certain building, No. 414 North Third street, in the city of St. Louis, where they conducted a paint shop business, and which building, on May 30, 1887, without carelessness or negligence on their part, collapsed by the crushing of the north wall thereof; that such north wall was then, and for a long time prior thereto had been, used as a party wall between the building so leased by plaintiffs and a certain adjoining building on the north, known as "416 North Third Street;" that said last-mentioned building was then, and since the year 1877 had been, owned by the defendant Jane Lindsay "as her own sole and separate property, free from all claims, debts, or liabilities of her said husband; that said Jane Lindsay, so being the owner of said last-mentioned building, did, on or about the 15th day of March, 1887, and prior thereto, make alterations and repairs in her said building in a negligent, careless, unskillful, and unworkmanlike manner, and did carelessly and negligently remove certain studding and supports, whereby an unreasonable amount of pressure was thrown upon said party wall, and did negligently and carelessly cause her said building to be used as a printing house, in which heavy machinery, tools, fixtures, and appliances were used upon the second floor thereof, thus weakening and thus causing an undue pressure upon said party wall; and by reason of said several acts of negligence and carelessness by the said Jane Lindsay, defendant, said wall was, on the 30th of May, 1887, crushed and caused to fall down, and in its fall was the immediate cause of the falling down of the building so occupied by plaintiffs as a paint store and shop." It is further alleged "that the immediate cause of the falling of their said building was the careless, negligent, and unworkmanlike manner in which defendant Jane Lindsay made repairs in her said building, and the negligent and careless manner in which she removed studding, partitions, and supports from her said building, and the negligent and careless use to which she put her said building after having thus removed said supports; that her said building was old, and the walls weak, and she knew, or in the exercise of reasonable care and diligence might have known, that the use of machinery incident to a printing house would tend to cause the falling of her said building and said party wall, and that she was negligent and careless in thus permitting said machinery to be used in her said building." The petition then sets forth specifically the damages claimed to have been sustained by plaintiffs by reason of the alleged wrongful acts, and refers to an account, which is filed with the petition, as setting forth all the items of damage and amount claimed as to each. To this petition appellant filed her answer, containing a general denial, and also alleging the falling of plaintiffs' building, and the damages, if any, they may have suffered thereby, were caused by their own carelessness and negligence in their own use of said building. A reply of general denial to the new matter of this answer was filed by plaintiffs. The defendant Andrew J. Lindsay filed his separate answer, consisting of a general denial of the allegations of the petition. The evidence showed that Mrs. Lindsay was the owner in fee of the property, having inherited it from her mother; that it was not her separate property, and in other respects tended to sustain the allegations of the petition.

At the close of plaintiffs' evidence defendants asked an instruction that under the pleadings and evidence plaintiffs were not entitled to recover. This instruction the court refused to give, and to such refusal defendants excepted. At the close of all the testimony the defendants again asked the court to instruct the jury as follows: "Under the pleadings and evidence in this case the court instructs the jury that the plaintiffs cannot recover, and their verdict must be for the defendant Jane Lindsay." "If the jury believe and find from the evidence that the person employed and who did make the changes in building No. 416 North Third street to adapt it to the uses and purposes of printing office for Bailey & Sagg was by defendant believed by his reputation in his business to be a competent mechanic to make such changes and repairs, and that the changes and repairs were intrusted to his judgment and the lessees, Bailey & Sagg, and also find that he was a proper and competent person to employ and engage in this change and repair, then the defendant is not liable." "The jury are instructed that a married woman cannot be held liable for a tort or wrong committed by the direction of her husband. If, therefore, the jury find from the evidence in this case that the repairs made on building No. 416 North Third street were made under the direction and supervision of her husband, their verdict must be for defendants." Which said instructions the court refused to give, and to such refusal defendants then and there at the time duly excepted. Thereupon, the court, at the instance and request of plaintiffs gave the following instructions to the jury, viz.: "The court instructs the jury that by the terms of the lease read in evidence, dated the 19th day of December, 1885, plaintiffs leased from B. M. Chambers, trustee of Anna B. Thatcher, building numbered 414 North Third street, in the city of St. Louis, Missouri, for a period of five years from the 1st day of April, 1886, at a stipulated rental of $1,000 per annum, payable in monthly installments of $83.03 1/3 per month in advance; and by the terms of said lease plaintiffs were required to take good care of the buildings and premises, and at the end of said five years' term surrender it to the lessor named in the lease, his heirs and assigns, with all keys, bolts, latches, and repairs left in as good condition as when received. The court further instructs the jury that if they believe from the evidence that immediately after the execution of said lease plaintiffs entered into said building, and continued to use the same as a paint store and shop until the 30th day of May, 1887, and that on said last-named day, without negligence on their part, said building collapsed by the crushing of the north wall, and greatly damaged plaintiffs; and if the jury further believe that for a long time prior to the crushing of said wall it had been used as a party wall between said building No. 414 North Third street, and the property of defendant Jane Lindsay, known as `416 North Third street,' was the property of the defendant, Jane Lindsay, who, so being the owner of said last-named building, did, in the spring of 1887, cause to be made certain alterations and changes in said building, and that she caused the same to be made in a careless and unskillful manner, and that she carelessly and negligently caused to be removed certain studding and supports from said building, and that by reason of the removal of said studding and supports an unreasonable amount of pressure was thrown upon said party wall; and if the jury further believe that defendant carelessly and negligently leased her said building to be used as a printing house, which required heavy machinery, fixtures, and appliances to be used on the second floor thereof, and in consequence of the removal of said studding and supports and the use to which she caused her said building to be put, said party wall was weakened, and by reason thereof fell and damaged plaintiffs; and if the jury further...