Flournoy v. Kuhn
| Decision Date | 21 April 1964 |
| Docket Number | No. 31473,31473 |
| Citation | 378 S.W.2d 264 |
| Parties | Patricia FLOURNOY, a Minor, by Julia Gilbert, Her Next Friend, (Plaintiff) Respondent, v. Catherine KUHN and Harry M. Fine Realty Company, Inc., (Defendants) Appellants. |
| Court | Missouri Court of Appeals |
Robert C. Ely, Schwartz & Ely, Burton H. Shostak, St. Louis, for appellant.
Don B. Sommers, Barnhart & Sommers, St. Louis, for respondents.
This is an action for damages arising out of injuries which the plaintiff sustained when the railing of a second-story porch gave way and she fell from the porch to the ground. The plaintiff was the daughter of a tenant who occupied the premises of which the porch was a part. The defendants were the owners and landlords who rented the premises to the plaintiff. There was a verdict and judgment for the plaintiff in the sum of $15,000, from which the defendants have appealed.
The building where the occurrence took place was a four-family, brick flat. It was located on the north side of Horton Place, in the City of St. Louis. There were separate entrances from the ground floor porch to each of the flats. This ground floor porch was roofed by a second floor porch. The second floor porch was unroofed and divided by a railing, so that each upstairs tenant had a small porch of its own. A door in each of the upper flats opened out onto its porch. The porch had a railing. This railing was along the front and sides of the porch. It was connected to corner posts and supported by vertical slats. There was a center post in front from which a railing ran back to the wall of the building and divided the porch in half.
The property had been sold to the Fine Realty Company, with defendant Catherine Kuhn as a straw party, on April 4, 1958, and it was managed by the Fine Realty Company. The plaintiff moved into one of the second floor apartments in August of 1958 with her mother, who was a month-to-month tenant. Her mother testified that when she moved into the apartment, she looked the place over and everything looked 'nice'. The porch railing did not look rotten. She did not know if the porch railing had been freshly painted, but it looked nice, and for ten months during her occupancy she had no trouble with it. She was never told anything about the porch railing.
On July 1, 1959, the plaintiff was attending summer high school. She returned home at noon, and around five o'clock that afternoon her brother and two other boys came to the apartment. One of them named Rogers wanted to meet a girl who lived in the downstairs apartment. They waited for the girl to come home. The plaintiff was in the livingroom, which had a door that opened onto the porch, and Rogers and the other boy were on the porch. Rogers was facing the apartment and leaning against the rail that paralleled the street. He was facing the other boy, who was leaning against the wall. The brother of the plaintiff was in the yard. The girl that Rogers was to meet came down the street, and plaintiff's brother called up to Rogers, 'Here she is.'
Rogers turned and, with both hands on the railing and his weight upon it, looked down. The plaintiff came from the livingroom and went to the railing, put her left hand upon it, and leaned over to see the approaching girl. As she leaned over, the rail broke and the whole front railing fell off. She and Rogers fell from the porch, with Rogers landing on the steps of the lower porch and the plaintiff landing upon the ground. The extent of her injuries will be more fully set out in passing upon the defendants' point charging that the verdict is excessive.
Mrs. Rybolt, a former tenant of the apartment in which the plaintiff lived, testified that she had lived in the apartment for four years. She moved out of it in August of 1958, which was the same month that the plaintiff's family moved in. She stated that the porch railing was bad and that the corner post would sway. She reported the condition to Thompson Realty Company, who had owned the building prior to the time that the defendants acquired it, but they did nothing about it. After the Fine Realty Company purchased the building, the premises were inspected by a man who she thought was Mr. Fine. She told him that the front porch railing was loose. She saw splinters and cracked wood and the corner post pulling away from the front of the porch. She knew of no repairs made to the front railing, but the defendants repaired the first four steps and the floor of the downstairs porch. They painted the railing upstairs.
The corner post which gave way was set in the floor of the porch. It was not a solid post but was made of four one-inch by eight-inch boards, each board forming a side of the square post. After the railing fell, photographs were taken and the photographer who took the pictures testified that the wood was soft and rotten. The Rogers boy testified that the whole bannister was rotten. The plaintiff's mother, who looked at the post after it had fallen, said it was dark and soft inside.
The defendants' testimony discloses that the premises had been inspected after they acquired the property. There was testimony that repairs had been made about the premises, but no one knew of any repairs to the upstairs bannister. The bannister was painted, and the painter testified that he saw no rotten wood. He was asked if he put in putty to fill cracks in parts of the bannister, and he had no recollection of having done so.
The appellants first assert that the court erred in overruling the defendants' motion for a directed verdict at the close of the plaintiff's case and at the close of all of the evidence. It is maintained that plaintiff failed to make a submissible case. This contention is predicated upon the theory that the defendants had no actual knowledge of the defective porch railing, and that there was no evidence that the condition existed at the time of the letting of the premises. We are cited to O'Gorman v. Kansas City, 233 Mo.App. 124, 93 S.W.2d 1132; Roach v. Herz-Oakes Candy Co., 357 Mo. 1236, 212 S.W.2d 758; Vollrath v. Stevens, 199 Mo.App. 5, 202 S.W. 283; Warner v. Fry, 360 Mo. 496, 228 S.W.2d 729.
All of these cases are quite distinguishable upon the facts. The evidence in these cases either disclosed that the landlord's knowledge of the offending condition was lacking or that the condition was obvious to the party injured. As we stated above, in the instant case some one for the defendants did inspect the premises after the defendants acquired it, and was told of the loose bannister. This was before the plaintiff had moved in, and it appears to be sufficient evidence to take the matter of the defendants' knowledge of the defective railing to the jury. It is true that the rotten condition may not have been known and may have progressed during the plaintiff's occupancy. This, however, does not affect the evidence that the defendants had knowledge that the bannister was loose. This was a dangerous condition, no matter what its cause may have been.
The next point raised is that a verdict-directing instruction given at the request of the plaintiff was erroneous. The instruction starts by requiring findings that prior to the plaintiff's...
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