Horstman v. Glatt, 53216

• Decision Date: 13 January 1969
• Docket Number: No. 53216,No. 1,53216,1
• Parties: Raymond M. HORSTMAN, Plaintiff-Appellant-Respondent, v. Meyer S. GLATT and Bertha S. Glatt, Defendnats-Respondents-Appellants
• Court: Missouri Supreme Court

Page 639

436 S.W.2d 639

Raymond M. HORSTMAN, Plaintiff-Appellant-Respondent, v. Meyer S. GLATT and Bertha S. Glatt, Defendnats-Respondents-Appellants.

No. 53216.

Supreme Court of Missouri, Division No. 1.

Jan. 13, 1969.

Motion for Rehearing or to Transfer to Court En Banc Denied

Feb. 10, 1969.

Edgar S. Carroll, Thos. J. Conway, E. E. Empie, Jr., Kansas City, for plaintiff-appellant-respondent, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.

Lowell Knipmeyer, Lawrence Brown, Kansas City, for defendants-respondents-appellants, Knipmeyer, McCann & Millett, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, of counsel.

WELBORN, Commissioner.

Raymond M. Horstman was injured on July 31, 1964, when the marquee, upon which he was standing and which covered the entrance to the Hotel New Yorker on Baltimore Avenue in Kansas City, fell to the ground. Horstman sued Meyer S. Glatt and Bertha Glatt as owners of the premises and Pusateri's Hotel New Yorker, Inc., and Oliver Goodman as operating tenants. A jury in the Jackson County Circuit Court returned a verdict in favor of the plaintiff and against the above-named defendants for $350,000. A remittitur of $50,000 was ordered and judgment for $300,000 entered against the hotel corporation and Goodman. However, the Glatts' motion for judgment in accordance with their trial motions for a directed verdict was sustained. The trial court also ordered that, in the event that such action was set aside on appeal, the Glatts' motion for new trial should be considered overruled. The hotel corporation and Goodman appealed from the judgment against them, but later dismissed their appeal. Horstman appealed from the judgment in favor of the Glatts. The Glatts also filed notice of appeal to review the trial court's action in overruling their motion for new trial, in the event that Horstman prevailed on his appeal.

The marquee in front of the Hotel New Yorker extended across the width of the hotel building. It extended outward from the building approximately the width of the sidewalk and was some fourteen feet above the walk. The marquee was built into the building. At its outer edge, it was suspended by three chains running from the marquee to the building. The marquee was of steel and wood construction and weighed 9,000 pounds.

The Glatts acquired the hotel property in 1927. The marquee was on the structure at that time. They operated the hotel under the name 'Bray Hotel' until 1947, when they leased the premises to Gus and James Pusateri. On November 1, 1948, a new lease was entered into between the same parties for a term of 10 years, from October 1, 1948 to September 30, 1958, with an option to renew for another 10-year term. This renewal option was exercised. On December 31, 1962, the Pusateris, with the consent of the Glatts, assigned the lease for the remainder of the term to Pusateri's Hotel New Yorker, Inc., a Missouri corporation. The corporation thereafter operated the hotel. The lease imposed the duty upon the lessee to make repairs.

The hotel corporation had a contract with Stalcup, Inc., to maintain and repair the electric sign on the front of the hotel. The main body of the sign was 10 to 15 feet above the marquee, and a channel of two rows of flashing lights ran from the marquee to the sign. At around 10:00 A.M. on July 31, 1964, Horstman, an employee of Stalcup, Inc., and another Stalcup employee went to the hotel to install a protective box over a flasher inside the sign. They placed a ladder against the marquee, with the base of the ladder in the street, and both climbed the ladder onto the marquee. Another ladder was placed on the marquee to provide access to the flasher on the sign. An additional length of ladder was needed to reach the flasher and Horstman and his co-worker started to pull up the ladder from the street. As they did so, the marquee suddenly gave way and the front end fell into the street. Horstman was severely injured when he was thrown into the street.

On this appeal, Horstman advances four separate theories for the Glatt's liability. We consider the first three, in part, together:

(1) 'Concealed Dangerous Conditions Known to Lessor.'

This is the long-established exception to the general rule that an owner of premises who leases them is not liable to the tenant and persons on the premises at the instance of the tenant for injuries caused by defects in the leased premises. Warner v. Fry, 360 Mo. 496, 228 S.W.2d 729, 2 Restatement of Torts (2d) §§ 355, 356, pp. 239--241. The exception which appellant would apply here was recently stated and applied by this court in Reckert v. Roco Petroleum Corporation, Mo.Sup., 411 S.W.2d 199, 205, as follows:

'* * * (W)here at the time the lease is executed there is a dangerous condition of the premises involving unreasonable risk of physical harm to persons on the premises, which is known to the landlord and not known to the tenant and not discoverable by the tenant in the exercise of ordinary care * * * (t)here is a duty on the landlord to disclose to the tenant the existence of the dangerous condition and he is liable to the tenant or the tenant's invitees for injuries or death resulting from such condition if the landlord fails to disclose them to the tenant or conceals their presence from the tenant. * * *'

See Prosser on Torts, 3rd Ed., § 63, pp, 413--414, 2 Restatement of Trots (2d) § 358, pp. 243--245.

(2) 'Conditions Dangerous to Those Outside of the Premises.'

Horstman would impose liability upon the Glatts under the exception which Prosser states as follows (op. cit., § 63, p. 414):

'A second exception is that, as in the case of a vendor, the responsibility to which the lessor would have been subject as occupier continues for at least a considerable time when he transfers possession of land in such condition that it involves an unreasonable risk of harm to others outside of it.h

This exception has been recognized in the cases of Walsh v. Southwestern Bell Telephone Co., 331 Mo. 118, 52 S.W.2d 839, and Kelly v. Laclede Real Estate & Investment Co., 348 Mo. 407, 155 S.W.2d 90, 138 A.L.R. 1065. Both of those cases involved the liability of the owner for injuries to persons on the public sidewalk.

(3) 'Premises Leased for Admission of the Public.'

Again, Horstman calls upon an exception stated by Prosser, the exception which 'arises where the land is leased for a purpose which involves the admission of the public.' Prosser, op. cit., § 63, p. 415. Appellant acknowledges that Missouri cases recognizing this exception have limited it to places leased for the purpose of admitting the public in large numbers, for example, a wrestling match. Brown v. Reorganization Inv. Co., 350 Mo. 407, 166 S.W.2d 476. See Warner v. Fry, 360 Mo. 496, 228 S.W.2d 729, 731(4, 5). He cites Prosser's criticism of such limitation and asserts that the exception should be extended to a 'public use' such as a hotel involves.

Inasmuch as the owner's liability under each of these exceptions is for injuries from dangerous conditions existing when the lessee took possession (2 Restatement of Torts (2d) § 356, p. 240), the fixing of that time is here important. Appellant takes January 1, 1963, the date that the assignment of the lease to the corporate tenant became effective, as the determinative date and argues that the conditions which caused the marquee to fall must have existed on that date. The respondents, on the other hand, argue that they had been out of possession of the property since November, 1947, and, in any event, the beginning of the 1948 lease to the Pusateris is the date as of which their liability must be determined. Inasmuch as the terms of the 1947 letting were not shown, we reject the beginning of that term as the decisive date.

We agree with the rule set forth in Keegan v. G. Heilman Brewing Co., 129 Minn. 496, 152 N.W. 877, 878(5), L.R.A. 1916F 1149, as follows:

'* * * (I)n no sense is an assignment of a lease and assent thereto to be regarded as a new leasing. * * * The rights of the parties, so far as concerns liability for dangerous condition of the premises, are determined as of the time of the original leasing, and not as of the time of the assignment.' See Michigan Millers Mutual Fire Ins. Co., et al. v. Canadian Northern Ry. Co., (8th Cir., 1945), 152 F.2d 292, 296(11--13).

This is the rule which reason calls for. Inasmuch as the period of the leasehold is not interrupted by the assignment, the landlord's liability should not begin anew as of the date of the assignment.

We conclude that liability under the exceptions here urged must be determined as of the date of the 1948 lease to the Pusateris.

There is no evidence which would warrant a finding that the marquee was in a dangerous condition at that time. The case was submitted under the res ipsa doctrine and appellant does not endeavor to state specifically just what the conditions were which caused the marquee to fall. Pictorial evidence showed some deterioration of the steel beams inside the marquee in the vicinity of the points of attachment of the chain to the marquee. There was no evidence of the duration of such condition. Mere examination of the pictorial evidence did not...