Gaines v. Schneider

• Decision Date: 21 April 1959
• Docket Number: No. 30092,30092
• Citation: 323 S.W.2d 401
• Parties: Roscoe GAINES (Plaintiff), Respondent, v. Elaine SCHNEIDER et al., Defendants, Armber Realty Co., a Corporation (Defendant), Appellant.
• Court: Missouri Court of Appeals

Page 401

323 S.W.2d 401

Roscoe GAINES (Plaintiff), Respondent, v. Elaine SCHNEIDER et al., Defendants, Armber Realty Co., a

Corporation (Defendant), Appellant.

No. 30092.

St. Louis Court of Appeals, Missouri.

April 21, 1959.

Rehearing Denied May 18, 1959.

Julius H. Berg, James C. Jennings, St. Louis, for appellant.

Ellsworth W. Ginsberg and Sanford E. Wool, St. Louis, for respondent.

DOERNER, Commissioner.

This was an action for damages begun in the Circuit Court of the City of St. Louis for injuries claimed to have been received by the plaintiff, a sub-tenant, upon a part of defendant's premises used in common by all of the tenants. The jury returned a verdict for plaintiff in the sum of $7,500, which was reduced by a remittitur to $6,250.

The accident happened on August 6, 1955. For nine years prior thereto plaintiff occupied one of the two bedrooms, and shared the kitchen, of a three-room unit on the third floor of the building at 911 North Theresa Avenue, St. Louis, Missouri, paying his rent to Mrs. Lena Edgerson, who occupied the other bedroom and who rented the unit from the owner. Defendant corporation purchased the property in April, 1955, taking title in the name of a straw party, and was the beneficial owner at the time of the accident. No complete description of the premises appears in the record, but it is clear that another tenant occupied the rooms on the second floor, and that there was but one front door entrance for the common use of the occupants of the second and third floors. There was also a rear entrance to the premises with a stairway leading directing to the third floor, the evidence being conflicting as to whether or not it was kept locked.

Plaintiff testified that on the evening in question he returned home between 6:30 and 7:00 P. M., and that as he approached the nine concrete steps which led to a landing in front of the door he found two ladies sitting on them, and two men standing on the sidewalk talking to the ladies. Plaintiff greeted them; one of the women, Mrs. Davis, arose to let him by, and he proceeded up the steps to the landing. The marble doorsill of the front door was about five or six inches higher than the landing. Plaintiff stepped up onto the doorsill with his right foot, and as he did so a piece broke off of the doorsill causing him to lose his balance and to fall down the flight of nine steps to the sidewalk. Prior to the fall plaintiff worked as a laborer for the V. F. Christmann Lumber Company, his duties consisting of loading and unloading heavy lumber, but subsequently he was only able to perform light work.

On both direct and cross-examination of the plaintiff it was developed that the marble doorsill had had a crack in it and a piece had been broken out of it during the entire nine years he had resided in the premises. He used the front entrance at least twice a day, sometimes more, and was fully aware of the condition of the doorsill. At the time he fell it was about dusk out, rather dark, but a nearby street light and the lights within the house illuminated the area sufficiently so that he could and did see the doorsill at the time he stepped on it. Based upon this testimony of the plaintiff, defendant contends that the trial court erred in overruling its motion for a directed verdict, because such evidence convicted the plaintiff of contributory negligence as a matter of law.

Defendant concedes that as a landlord it was its duty to keep those parts of the property that were used in common by all of its tenants in a reasonably safe condition. But it argues that it was not an insurer of its tenants, and that under 'certain circumstances' a tenant can be guilty of contributory negligence as a matter of law so as to preclude a recovery against the landlord. Assuming the rule of law to be as stated, we think it has no application here; nor do the cases cited by defendant support its position. Adkins v. Sutherland Lumber Co., Mo.App., 307 S.W.2d 17, involved a business inviteeowner relationship, and not that of a landlord-tenant; and as pointed out in Coplen v. Zimmerman, Mo., 271 S.W.2d 513, 517, there appears to be a distinction between the two classes of cases. In Edwards v. E. B. Murrary & Company, Mo.App., 305 S.W.2d 702, the second case cited by defendant, no question of contributory negligence was considered.

The last case cited by defendant is the landmark case of Roman v. King, 289 Mo. 641, 233 S.W. 161, 25 A.L.R. 1263. That case may be said to mark the inception of the present rule that the continued use by a tenant of a portion of the premises which is defective and which it is the landlord's duty to repair, does not, standing alone, convict the tenant of contributory negligence as a matter of law if he continues to use the same, provided it reasonably appears that he can safely do so with the exercise of care. Roman v. King, supra; Brewer v. Silverstein, Mo., 64 S.W.2d 289; Coats v. Sandhofer, Mo.App., 248 S.W.2d 455. Unless the defective condition is so open, obvious and dangerous (what is described in some cases as 'glaringly dangerous') that it can be said that no reasonably prudent person would have done as the injured party did, the issue of contributory negligence is one for the jury. Brewer v. Silverstein, supra; Coats v. Sandhofer, supra; O'Neill v. Sherrill, Mo.App., 254 S.W.2d 263. Under the facts of this case, we believe the trial court was correct in overruling the defendant's motion for a directed verdict and in submitting the question of contributory negligence to the jury.

One of the doctors who testified on behalf of plaintiff was Dr. Walter R. Johnson, an orthopedist, to whom the plaintiff was referred by Dr. Blair W. Carter, another of his physicians. In his direct examination Dr. Johnson related the orthopedic examination he had made of the plaintiff and the condition he found from his examination, including the wasting away of the muscles of the right shoulder joint, the weakness, restriction of motion and crepitation of that joint, and a crepitation in the right knee. He also exhibited the X-rays which had been taken of plaintiff's right shoulder, and pointed out the evidence thereon of the acromio clavicular separation which in his opinion the plaintiff had sustained. Defendant's cross-examination of Dr. Johnson was confined to the ailment of arthritis, to which the doctor had briefly referred in his direct examination. Counsel for defendant, by his questions, developed from the Doctor that there are two types of arthritis, one being the degenerative type and the other rheumatoid arthritis; and that the plaintiff had the degenerative type. On redirect examination the Doctor testified that degenerative arthritis was in turn subdivided into two categories, traumatic arthritis and osteo-arthritis, depending upon the history; that there is no way of telling from merely looking at the X-ray whether or not the arthritis is to be classified as traumatic or osteo-arthritis; and that a diagnosis can only be made by taking into account the history of the patient. Counsel for plaintiff then inquired whether the Doctor had taken the history of the plaintiff into account in arriving at his diagnosis, and the Doctor answered that he had. Defendant's recross-examination immediately followed, which we quote in full:

'Q. Doctor, let me ask you this. In reaching your diagnosis, I get it that you diagnosed this condition based upon the history the man gave you?

'A. Yes.

'Mr. Jennings: If the Court please, I move this doctor's entire testimony be stricken on the grounds it is not based upon personal examination but based upon the history as furnished him by the plaintiff. I move all his testimony be stricken.

'The Court: Objection overruled.

'Mr. Jennings: That's all.'

There was no elaboration as to the nature of the 'history' to which the Doctor referred. Considered in the light of the preceding questions, we think it may fairly be inferred that the history given the Doctor was that the plaintiff had fallen.

Defendant assigns error in the overruling of his motion to strike the Doctor's entire testimony, on the grounds that a doctor may not base his opinion upon or testify to statements of the patient with respect to past physical conditions, or circumstances surrounding the injury, or the manner in which the injury was received. But a fair reading of the record discloses that Dr. Johnson based almost all of his opinion of the plaintiff's injuries on the examination he made and on the X-rays taken. The motion to strike was therefore far too broad, and properly overruled. Furthermore, it was only in connection with the nature of the arthrities from which he found plaintiff to be suffering that he took into account, in making his diagnosis of traumatic arthritis, the history of plaintiff's fall. He did not attempt to testify as to what plaintiff had told him regarding the circumstances surrounding the injury, nor the manner in which the injury had been received. No serious contention was made by the defendant that the plaintiff did not fall down the steps on the occasion in question, the thesis of its defense being that the plaintiff fell because he was intoxicated, and not because the doorsill broke. The rule is that if the statement made to the Doctor is confined to a fact already established by competent evidence or a fact not contested or disputed, then there is no error in permitting the answer to be given or to stand. Huffman v. Terminal R. Ass'n of St. Louis, Mo., 281 S.W.2d 863; Oesterle v. Kroger Grocery & Baking Co., 346 Mo. 321, 141 S.W.2d 780; Baumhoer v. McLaughlin, Mo.App., 205 S.W.2d 274. And lastly, the evidence showed that Dr. Johnson examined plaintiff for the purpose of treating him, and not merely to qualify as an expert witness in the case. As shown by the Doctor's testimony, some inquiry as to whether or not the plaintiff had suffered a trauma was necessary to enable the Doctor to make an intelligent...