Johnson v. Theo. Hamm Brewing Co.
| Decision Date | 19 June 1942 |
| Docket Number | No. 33238.,33238. |
| Citation | 4 N.W.2d 778,213 Minn. 12 |
| Parties | JOHNSON et al. v. THEO. HAMM BREWING CO. et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Martin County; Julius E. Haycraft, Judge.
Consolidated actions by Oscar Johnson against the Theo. Hamm Brewing Company and the United Properties, Inc., to recover medical expenses incurred by reason of injuries suffered by the daughter of Oscar Johnson, and to recover damages for disability, pain and suffering of the daughter. The trial court granted a motion for dismissal as to the Theo. Hamm Brewing Company, and the motion of the United Properties, Inc., for a directed verdict was granted. The motions of the plaintiffs for a new trial were denied, and the plaintiffs appeal.
Orders affirmed.
A. E. Parsons, of St. Paul, and Paul C. Cooper, of Fairmont, for appellants.
Bundlie, Kelley & Finley, of St. Paul, for respondents.
On September 21, 1940, Geraldine Gladys Johnson, nine years of age, was injured when a bar or counter, situated in a building previously used for the business of selling beer and soft drinks, fell upon her as she was climbing on it. On the theory that defendants were the owners and in possession of the building and that their negligence had caused the accident, an action was instituted against them by plaintiff Oscar Johnson, father of Geraldine, for the recovery of medical expenses incurred by reason of the injuries suffered by his daughter at the time of the accident. A second action was instituted in behalf of the child by the father to recover damages for disability, pain, and suffering. The two actions were consolidated for trial in the district court. After considerable testimony had been adduced in behalf of plaintiffs but before they had rested, the trial court granted a motion for dismissal as to defendant Theo. Hamm Brewing Company on the ground that it then appeared that at the time of the accident this defendant was not the owner and was not in possession of the premises involved. Plaintiffs' case having been presented to the court and jury, defendant United Properties, Inc., rested without introducing any evidence. Its motion for a directed verdict was granted. Each plaintiff moved for a new trial, and, the motions having been denied, each appeals. We consider the cases as one.
The most important question raised by the assignments of error is whether the trial court properly directed a verdict for defendant United Properties, Inc. The action of the trial court having been premised on the ground that plaintiffs had failed to establish actionable negligence on the part of that defendant, we consider the evidence relevant to this issue in the light most favorable to plaintiffs.
The building in which the accident occurred is located on a lot in the business district of the village of Monterey. Prior to December 31, 1937, it was owned by defendant Theo. Hamm Brewing Company. There was introduced in evidence a quitclaim deed whereby the brewing company conveyed the property to United Properties, Inc. On its face the deed appears to have been signed and acknowledged on December 31, 1937. It was filed for record on March 10, 1941, and the revenue stamps appear to have been cancelled on March 8 of that year. In 1933, one Anton H. Meidl entered into possession of the building, paying, by checks made payable to the brewing company, a rental of $20 a month in advance on the first day of each month. He conducted therein a pool hall and sold beer, soft drinks, and related merchandise. Having erected a building on the lot adjacent to the one he had been renting, Meidl sent a letter dated July 31, 1940, to the brewing company in which he stated that "my new building will be completed by about the 10th or 15th of September and * * * I then will vacate your building here and move into my own." He began to move into his new place of business on or about September 4, 1940. At that time the bar or counter which caused injury to Geraldine and which was owned by Meidl was fastened to the floor of the old building with iron brackets and screws. At the time of the accident these brackets and screws had been removed. From the evidence it does not appear with certainty who removed them, but Meidl testified that prior to the accident a carpenter employed by him had been working in the building and that he had ordered the local drayman to remove this bar therefrom.
At the time of the accident Meidl had the key to the leased property in his possession. He had not been given any notice to quit. In addition to the bar, a stove and two booths owned by him had been left in defendants' building.
It appears that children had gained entrance to the building on several occasions subsequent to September 4, and on the morning of September 21 there were several young boys and girls playing in it. There is no direct evidence as to how they or those there previously had entered. Meidl stated that he had been in the building only once between September 4 and the date of the accident; that upon leaving he had locked the front and back doors; that these were the only entrances to the building except one on the side which had been blocked by his newly erected structure. However, there is considerable evidence to the effect that, while the front door functioned properly, the back door sagged so that it could be locked only by prying it up from the sill with a bar. There is also testimony showing that there was a screen door at this entranceway which could be latched from the inside.
On the day of the accident, Geraldine and her playmate Charlene McClagen were playing on the street in front of the leased premises. Looking into the building, they saw the children who had gained entrance. Invited to join them, Geraldine and Charlene entered the building through the front door without difficulty. After a few minutes, Geraldine walked to the bar, placed her hands on the edge of its surface, and fixed her feet on a part which projected from its outer side near the floor. While she was in this position, the bar fell on her and injured her, the device by which it had been affixed to the floor having been removed.
Plaintiffs argue that they have established a basis for a finding of negligence because, according to their view, the evidence was such as reasonably to justify a jury in concluding that the rear door of the building was defective and could not be closed, and that, knowing or having reason to know of this situation and the additional fact that children had entered the building before the date of the accident, one or both of the defendants had permitted the bar "to exist upon the premises unguarded and unprotected" after the brackets and screws had been removed.
1. Whether defendant United Properties, Inc. (hereinafter referred to as defendant) was negligent in the respects mentioned depends in a large measure upon its status with respect to the premises at the time of the injury. Plaintiffs claim that defendant had possession of the building, while the latter argues that it was merely a lessor and that Meidl was in possession. Occupying the premises under an oral lease without any agreement as to the length of the term and paying rent the first day of each month, Meidl was a tenant from month to month. Johnson v. Albertson, 51 Minn. 333, 53 N.W. 642, and cases cited in 4 Dunnell, Dig. § 5375, note 79. Neither the lessor nor the lessee can terminate such a tenancy absent agreement so to do except by one month's notice directed to the end of the month. Finch v. Moore, 50 Minn. 116, 52 N.W. 384; Grace v. Michaud, 50 Minn. 139, 52 N.W. 390; Van Brunt v. Wallace, 88 Minn. 116, 92 N.W. 521; Hunter v. Frost, 47 Minn. 1, 49 N.W. 327; Eastman v. Vetter, 57 Minn. 164, 58 N.W. 989; Alworth v. Gordon, 81 Minn. 445, 84 N.W. 454; Waggoner v. Preston, 83 Minn 336, 86 N.W. 335; 4 Dunnell, Dig. & Supplements, §§ 5440, 5441, 5443, and 5444. It is clear that no notice to quit was ever given to Meidl by defendant. If the notice which Meidl sent to the brewing company be construed as a sufficiently formal notice of his intention to quit the premises, it was not effective to terminate the tenancy before the end of September. It cannot be said that this notice served to terminate the tenancy at the end of August, because in his letter to the brewing company Meidl said that his building would be completed on or about the 10th or 15th of September and that he would vacate the...
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