Gray v. Pearline

• Decision Date: 20 November 1931
• Citation: 43 S.W.2d 802,328 Mo. 1192
• Parties: Anna Gray, Appellant, v. Louis Pearline and Sarah Pearline
• Court: Missouri Supreme Court

43 S.W.2d 802

328 Mo. 1192

Anna Gray, Appellant, v. Louis Pearline and Sarah Pearline

Supreme Court of Missouri

November 20, 1931

Appeal from Circuit Court of City of St. Louis; Hon. John W Calhoun, Judge.

Affirmed.

Sievers & Hartmann and Allen, Moser & Marsalek for appellant.

(1) In passing upon the demurrer to the evidence it is the duty of the court to accept as true all evidence in favor of plaintiff and all inferences in plaintiff's favor which may, with any degree of propriety, be drawn therefrom, and the court cannot draw inferences in favor of defendants to counterbalance or overthrow inferences in plaintiff's favor. Knapp v. Hanley, 108 Mo.App. 360; Troll v. Drayage Co., 254 Mo. 332; Buesching v. Gas Light Co., 73 Mo. 219; Eyler v. Edina Light Co. (Mo App.), 237 S.W. 545; Mosby v. Comm. Co., 91 Mo.App. 500; Watson v. Stromberg, 46 Mo.App. 630; Hoelker v. American Press (Mo. Sup.), 296 S.W. 1008. The court can sustain a demurrer only when the evidence and the inferences to be drawn therefrom, considered in the light of the foregoing rule, show conclusively that plaintiff has no case. Scherer v. Bryant, 273 Mo. 602; Gratiot v. Railroad, 116 Mo. 466; Steffens v. Fisher, 161 Mo.App. 393. (2) The evidence was sufficient to support an inference that the defendants retained legal possession and control of the porch from which plaintiff fell. (a) The ultimate question involved was the intent of the parties. There was no specific agreement on the subject, and therefore the question can be answered only by inference from the facts and circumstances. The parts of the structure were so joined as to make it an indivisible unit. Parts of the porch, such as the platform comprising the ceiling of the first story and the floor of the second, were devoted to the service of two or more of the tenants. Other parts, such as the supporting columns and roof, were parts of the porch as a whole, and were not assignable to any particular tenant. In certain of its purposes the porch, as a whole, was used for the maintenance of the entire building, to-wit, in carrying the gutter and downspout which drained the entire roof; in serving as a support for the yard fences; and in providing for repair men, a means of access to the roof of the building proper, through the trap door in the porch roof. (b) From the foregoing facts, an inference could reasonably be drawn by the jury that the possession and control of the porch was retained by the landlord. McGinley v. Alliance Trust Co., 168 Mo. 257; Harakas v. Dickie (Mo. App.), 23 S.W.2d 651; Miller v. Geeser, 193 Mo.App. 1; Maslin v. Childs, 130 N.Y.S. 902, 146 A.D. 174; Hinthorn v. Benfer, 90 Kan. 731; Fleischer v. Dworsky, 153 N.Y.S. 951, 90 Misc. 628; Feeley v. Doyle, 222 Mass. 155, 109 N.E. 902; Sullivan v. Northbridge, 246 Mass. 382, 141 N.E. 114; Farguet v. DeSenti, 110 Conn. 367, 148 A. 139; Vinci v. O'Neil (Conn.), 131 A. 408; Beaulac v. Robie, 92 Vt. 27, 102 A. 88.

Holland, Lashly & Donnell and George F. Wise for respondents.

(1) The evidence adduced by the plaintiff in chief was not sufficient to warrant a verdict in favor of the plaintiff. And the court properly sustained the demurrer to the evidence. State ex rel. v. Goetz, 131 Mo. 675. (2) The alleged defective porch railing which appellant claims caused her to fall, and the alleged defective porch from which she fell, were in the possession and control of herself as tenant, and hence respondents, as landlords, were under no duty to make repairs thereon and were consequently not liable for appellant's injuries alleged to have been due to a defective condition existing therein; consequently the court properly sustained a demurrer to the evidence. Sullivan v. Northridge, 246 Mass. 382; Corey v. Losse, 297 S.W. 32; Bender v. Weber, 250 Mo. 551; McBride v. Gurney, 185 S.W. 735; Mathews v. Galbraithe, 238 S.W. 554; Kohnle v. Paxton, 268 Mo. 463; Murphy v. Dee, 190 Mo.App. 83; Dailey v. Vogl, 187 Mo.App. 261; Karp v. Barton, 164 Mo.App. 389; Larson v. Eldridge, 279 P. 120, 153 Wash. 23; Kisten v. Koplowitch, 202 N.Y.S. 521; Kushes v. Ginsburg, 91 N.Y.S. 216 (N. Y. Ct. App.), 81 N.E. 1168; Dustin v. Curtis, 74 N.H. 266, 11 L. R. A. (N. S.) 504; Walsh v. Frey, 101 N.Y.S. 774; De Gregoria v. Ricio, 258 Mass. 123; Phelan v. Fitzpatrick, 188 Mass. 237; Kearines v. Cullen, 183 Mass. 298; Flaherty v. Nieman, 125 Iowa 546. The porch appurtenant to the appellant's apartment was demised for her exclusive use as the tenant and was not retained by the respondents for the common use of two or more tenants, and hence the respondents are not liable for an alleged defective condition existing therein, and it is immaterial whether the portion of the premises alleged to be defective was the handrail which broke or the northeast corner column of the porch, and it is immaterial whether the portion of the premises alleged to be defective be a part of a common structure or be necessary for the support of other portions of the tenement not demised to appellant. Roberts v. Cottey, 100 Mo.App. 500; Conahan v. Fisher, 233 Mass. 234; Wilson v. Woodruff, 43 A. L. R. 1269, 65 Utah 118, 235 P. 368; Miles v. Tracey, 4 L. R. A. (N. S.) 1142, 28 Ky. L. Rep. 621, 89 S.W. 1128; King & Metzger v. Cassell, 150 S.W. 682; Ward v. Fagin, 101 Mo. 669; Vai v. Weld, 17 Mo. 232. The fact that the respondents made repairs to the porch subsequent to the accident to appellant does not impose liability upon respondents for the prior alleged defective condition, nor is such fact an admission by respondents of their liability, and this proposition is not controverted by the cases cited by appellant. Vinci v. O'Neil, 131 A. 408; Farguet v. De Senti, 110 Conn. 367; Beaulac v. Robie, 92 Vt. 27; Turner v. Ragan, 229 S.W. 809; Kisten v. Koplowitch, 202 N.Y.S. 521; Kearines v. Cullen, 183 Mass. 298; Conahan v. Fisher, 233 Mass. 234; Phelan v. Fitzpatrick, 188 Mass. 237. (3) There was no evidence to support an inference that the defective condition of the railing which caused appellant's fall was due to the sagging of the beam at the northeast corner of the porch. If the defective condition of the railing had been due to the settling of the northeast corner beam, respondents would not be liable, because the defective condition was in premises demised exclusively to the tenant, it being immaterial whether the defective condition existed in a common structure. Cases cited under Point 2.

Ferguson, C. Sturgis and Hyde, CC., concur.

OPINION

FERGUSON

This is an action by a tenant to recover damages for personal injuries alleged to have been sustained by falling from the second floor porch of a tenement house owned by the defendants when an alleged defective "railing of said porch" broke or gave way. At the close of plaintiff's case the defendants requested and the court gave a peremptory instruction to the jury to find for the defendants, whereupon plaintiff took an involuntary nonsuit. The court overruled plaintiff's motion to set aside the involuntary nonsuit, and plaintiff appealed.

It appears that respondents owned a four-family, two-story brick tenement building fronting on the north side of Dickson Street in the City of St. Louis. They acquired the property in November, 1925. There are two apartments on each floor rented to four tenants; each occupied a separate apartment. None of the tenants held under a written lease, all being tenants from month to month and there was no agreement as to repairs. Appellant as a tenant from month to month occupied the second floor east apartment. At the rear of the building, being the north end thereof, is a porch for the use of the second floor tenants. The floor or platform of this porch is on a level with the second floor apartments and extends from east to west across the entire width of the building. The porch is enclosed on all sides, except the side next to the building, with a railing or banister. On a line exactly dividing the porch is a banister extending from north to south, connecting the north wall of the building at one end and the center supporting column of the porch at the other. The porch is thus partitioned into two distinct and well defined sections of equal size, each enclosed on all sides by banisters except the side formed by the wall of the building. All the banisters are three feet in height, extend to within a few inches of the porch floor, and consist of top and bottom horizontal rails with vertical pickets or slats between. The east section of the porch is connected with and appurtenant to the east second floor apartment rented and occupied by appellant, and a window and door in that apartment open upon that section of the porch. The same arrangement exists as to the west second-floor apartment and the west section of the porch appurtenant thereto. A separate stairway extends from each section of the porch to the ground, and except for the opening required for an entrance to the stairway each section of the porch is completely enclosed by a banister on all sides except the side formed by the north wall of the building. The yard to the north of the building is divided by a high board fence, running north and south, which separates the yard accessible to and for the use of the tenants of the first and second floor apartments on the east from the yard available to and for the use of the tenants in the first and second floor apartments on the west. The stairway to the east section of the porch and appellant's apartment leads to the east yard, and the stairway from the west section of the porch and the west second floor apartment leads to the west yard. The stairway to appellant's apartment is not connected with or a part of any other stairway and no other apartment or part of the building is served by it. The same situation and...