Henderson v. Dolas

• Decision Date: 14 February 1949
• Docket Number: No. 40368.,40368.
• Citation: 217 S.W.2d 554
• Parties: HENDERSON v. DOLAS.
• Court: Missouri Supreme Court

217 S.W.2d 554

HENDERSON v. DOLAS.

No. 40368.

Supreme Court of Missouri, Division No. 1.

February 14, 1949.

Appeal from St. Louis Circuit Court; James E. McLaughlin, Judge.

Action by Anna V. Henderson, by her mother and natural guardian, Marie Story, against James Dolas, for personal injuries sustained in a fall from a second floor porch of premises leased from defendant by plaintiff's mother. Judgment for plaintiff, and defendant appeals.

Affirmed.

John S. Leahy, John J. Nangle, George E. Gantner, and Roberts P. Elam, all of St. Louis, for appellant.

Louis E. Miller, Miller & Landau, and B. Sherman Landau, all of St. Louis, for respondent.

DALTON, Commissioner.

Action for damages for personal injuries alleged to have been caused by defendant's negligence. Verdict and judgment were for plaintiff for $10,000 and defendant has appealed.

Plaintiff, the eleven year old daughter of defendant's tenant, was injured when a second floor porch banister, which defendant landlord had somewhat recently and voluntarily repaired, gave way and she fell upon a brick covered areaway some 18 feet below. The cause pleaded and submitted was based upon the well established rule that, if a landlord, who is under no obligation to his tenant to keep the demised premises in repair, voluntarily assumes to repair such premises and does so negligently, he is liable in damages for all injuries resulting to the tenant or a member of his household by reason of such negligence in making the repairs or in leaving the premises in an unsafe condition. Bartlett v. Taylor, 351 Mo. 1060, 174 S.W.2d 844, 847(2) and cases cited. In view of the particular issues presented on this appeal, it will not be necessary to state the detailed facts upon which liability is based. It is conceded that a case was made for the jury on the theory pleaded and submitted.

Appellant contends that plaintiff's instruction 1 is erroneous and the verdict grossly excessive. Instruction 1, is as follows: "* * * it is admitted * * * that the premises occupied by the plaintiff * * * were owned by the defendant at all times during the plaintiff's occupancy; therefore, if you find and believe from the evidence that the plaintiff resided in said premises with her mother continuously from September, 1943, and up to the present time; and if you further find that on and prior to September the 7th, 1944, the porch at the rear of the premises occupied by the plaintiff was dangerous and unsafe in that the ends of the top railing on the south side of said porch were rotted and insecure, if you so find; and if you further find that on or about September 7, 1944, the defendant undertook to and did repair said railing, and that said repairs, if any, were improperly made; and if you further find and believe from the evidence that after the defendant made said repairs the top of the railing at the south of said rear porch was rotted and insecure, if you so find, and that (by) reason thereof said porch was dangerous and unsafe; and if you further find and believe from the evidence that in so repairing said porch the defendant was guilty of negligence; and if you further find and believe from the evidence that on February 10, 1945, the plaintiff was injured as mentioned in the evidence, and that such injury, if any, directly resulted from the negligent repairing of said porch by the defendant, as aforesaid, if you so find, and that the plaintiff was not guilty of contributory negligence as submitted in other instructions, then your verdict will be in favor of the plaintiff and against the defendant James Dolas." [Italics and parenthesis ours). Respondent says the word "by" shown in parenthesis appeared in the original instruction and appellant in argument in effect so conceded.

Appellant does not contend the instruction is erroneous by reason of any omission or failure to require the finding of any essential element of plaintiff's case, but insists that the instruction is erroneous by reason of the inclusion of erroneous and misleading provisions. Appellant says the instruction "did not require the jury, in determining whether defendant was negligent, to apply the established legal standard for determining negligence, but gave the jury a roving commission to apply standards of morals, decency and decorum in determining whether or not defendant was negligent, and the instruction was, therefore, misleading and highly prejudicial to defendant." Appellant further contends that the italicized "portions of the instruction are inherently defective, and could not but mislead and confuse the jury, in that they are too general, vague and indefinite for the jury to utilize as a basis for liability predicated upon negligence." Appellant cites Paisley v. Kansas City Public Service Co., 351 Mo. 468, 173 S.W.2d 33, 38(3) to the effect that "An instruction, on a plaintiff's contributory negligence, `is too general' and `amounts to what is commonly termed a roving commission' when `it fails to advise the jury, or point out in any way, what acts or omissions on the part of plaintiff, if any, found by them from the evidence, would constitute contributory negligence.'" Appellant further says that "in permitting the jury to find that repairs made by the defendant to the porch railing `were improperly made,' and that `in so repairing said porch' the defendant was negligent, as a predicate for recovery, by plaintiff, the instruction was prejudicially erroneous in that it utterly failed to require the jury to find the facts which would constitute negligent making by defendant of repairs to the porch railing." On this point the appellant cites State ex rel. Star Publishing Co. v. Associated Press, 159 Mo. 410, 60 S.W. 91, 93(2), 51 L.R.A. 151, 81 Am.St.Rep. 368; Murphy v. Fidelity National Bank & Trust Co., 226 Mo.App. 1181, 49 S.W.2d 668, 671(20); Ternetz v. St. Louis Lime & Cement Co., Mo.Sup., 252 S.W. 65, 71(6); and State v. Brickey, 348 Mo. 248, 152 S.W.2d 1055, 1061(8). These cases in effect hold that the words, "proper" and "improper," are general, vague and indefinite terms.

The applicable rule has been stated in Carson v. Evans, 351 Mo. 376, 173 S.W.2d 30, 32, as follows: "It is the settled rule that an instruction purporting to cover the whole case and authorize a verdict should require the finding of all the facts necessary to sustain the verdict. Negligence being usually a question for the jury, an instruction should set out the facts, supported by the evidence, relied on to show the acts of negligence so the jury may determine whether or not the commission of such acts was negligence."

We think that instruction No. 1 was sufficient both as to form and substance. In determining its sufficiency the instruction must be read and considered as a whole and isolated phrases may not be selected and considered independent of the context in which they appear. Jones v. St. Louis-San Francisco R. Co., 333 Mo. 802, 63 S.W.2d 94, 99; Rishel v. Kansas City Public Service Co., Mo.Sup., 129 S.W. 2d 851, 856; Mendenhall v. Neyer, 347 Mo. 881, 149 S.W.2d 366, 371; Bowman v. Standard Oil Co., 350 Mo. 958, 169 S.W.2d 384, 388; Mueller v. Schien, 352 Mo. 180, 176 S.W.2d 449, 452; Quigley v. St. Louis Public Service Co., Mo.Sup., 201 S.W.2d 169, 170. Independent of the portion of the instruction upon which appellant relies as constituting a roving commission to the jury, the instruction does require the finding of the essential facts, not otherwise admitted, which were essential to a recovery in this case. Bartlett v. Taylor, supra; Shaw v. Butterworth, 327 Mo. 622, 38 S.W. 2d 57, 60; Bloecher v. Duerbeck, 333 Mo. 359, 62 S.W.2d 553, 555, 90 A.L.R. 40; Lasky v. Rudman, 337 Mo. 555, 85 S.W.2d 501; Ambruster v. Levitt Realty & Investment Co., 341 Mo. 364, 107 S.W.2d 74; Lahtinen v. Continental Bldg. Co., 339 Mo. 438, 97 S.W.2d 102; Kennedy v. Bressmer, Mo.App., 154 S.W.2d 401. As stated, appellant concedes that no requirement essential to plaintiff's recovery is omitted.

While the instruction requires the general finding that the repairs, if any, were "improperly made," it further, and in the conjunctive therewith, expressly requires the finding of specific facts, not only that the ends of the top railing on the south side of the porch were rotted and insecure prior to the alleged repairs, but further that defendant undertook to and did repair the said railing; that after the repairs were made the railing was rotten and insecure and by reason thereof the porch was dangerous and unsafe; and that in so repairing the porch the defendant was guilty of negligence. The instruction was not erroneous or misleading by reason of the use of the general term "improperly," when such term was used in the conjunctive with a required finding of the specific additional facts necessary to a recovery by plaintiff. Quigley v. St. Louis Public Service Co., supra; Jones v. St. Louis-San Francisco R. Co., supra; Dove v. Atchison, Topeka & Santa Fe R. Co., 349 Mo. 798, 163 S.W. 2d 548, 553; Brinkley v. United Biscuit Co., 349 Mo. 1227, 164 S.W.2d 325, 334. The mere fact that an instruction requires the jury to find more than was necessary for them to find in order for plaintiff to recover, or calls for the finding of immaterial facts in addition to the substantive facts essential to a plaintiff's case, affords no ground for defendant to complain. Foster v. Missouri Pac. R. Co., 115 Mo. 165, 181, 21 S.W. 916; Seawell v. Kansas City, Ft. Scott & M. R. Co., 119 Mo. 222, 241, 24 S.W. 1002. By the use of the word "improperly" in the instruction the plaintiff assumed an unnecessary burden of which the defendant may not complain. Burneson v. Zumwalt Co., 349 Mo. 94, 159 S.W.2d 605, 610; Tash v. St. Louis-San Francisco R. Co., 335 Mo. 1148, 76 S.W.2d 690, 697; Murphy v. Great American Ins. Co., 221 Mo.App. 727, 732, 285 S.W. 772. Considered as a whole, we think the instruction was so clear, definite and certain in its requirements,...