Kelly v. Laclede Real Estate & Inv. Co.

• Citation: 155 S.W.2d 90,348 Mo. 407
• Parties: James Madison Kelly, Appellant, v. Laclede Real Estate & Investment Company et al., Defendants, Caradine Hat Company, a Corporation, Respondent. James Madison Kelly, Respondent, v. Laclede Real Estate & Investment Company, a Corporation, Appellant
• Decision Date: 12 June 1941
• Court: United States State Supreme Court of Missouri

155 S.W.2d 90

348 Mo. 407

James Madison Kelly, Appellant, v. Laclede Real Estate & Investment Company et al., Defendants, Caradine Hat Company, a Corporation, Respondent. James Madison Kelly, Respondent, v. Laclede Real Estate & Investment Company, a Corporation, Appellant

Supreme Court of Missouri

June 12, 1941

Rehearing Denied July 25, 1941.

Appeal from Circuit Court of City of St. Louis; Hon. Eugene L Padberg, Judge.

Reversed and remanded.

J Edward Gragg for James Madison Kelly; M. G. Baron of counsel.

The court erred in sustaining codefendant Caradine Hat Company's demurrer to the evidence at the end of plaintiff's case and should have submitted plaintiff's case to the jury on the evidence adduced by plaintiff. 45 C. J., p. 1214, sec. 781; Walsh v. Southwestern Bell Tel. Co., 331 Mo. 118, 52 S.W.2d 839.

George A. Hodgman and Robert S. Lindsey for Laclede Real Estate & Investment Company.

(1) This appellant was entitled, as a matter of law, to a verdict from the trial court. (a) A landlord surrendering possession and control of premises to a tenant is not thereafter bound to keep the building in repair, and is not liable (absent a nuisance at time of letting) to third persons for injuries resulting from a defective condition of the building. 36 C. J. 239; 16 R. C. L. 1063; Kilroy v. St. Louis, 242 Mo. 79, 145 S.W. 769; Rice v. White, 239 S.W. 141; Walsh v. Southwestern Bell Tel. Co., 331 Mo. 118, 52 S.W.2d 839; Shippey v. Kansas City, 254 Mo. 1, 162 S.W. 137; Reinhardt v. Holmer, 143 Mo.App. 212, 127 S.W. 611; Lasky v. Rudman, 337 Mo. 555, 85 S.W.2d 501; Monroe v. Carlisle, 176 Mass. 199, 57 N.E. 332; Johnson v. Kurn, 95 F.2d 629. (b) The plaintiff did not make a res ipsa loquitur case as to the lessor-owner and did not introduce any evidence of negligence on the part of the lessor-owner, and there was, accordingly, no showing of negligence upon which a jury could return a verdict against the lessor-owner. The case should not have been submitted to the jury as to this appellant. 45 C. J. 1212, 1214; 3 Bouvier's Law Dictionary, Rawles' Third Revision, 2908; McCloskey v. Koplar, 46 S.W.2d 557; Parnell v. St. Joseph Ry. L. H. & P. Co., 81 S.W.2d 957; Felher v. Union Electric L. & P. Co., 100 S.W.2d 494; Wells v. Berberich Delivery Co., 134 S.W.2d 125; De Mun Estate Corp. v. Frankfort General Ins. Co., 196 Mo.App. 1, 187 S.W. 1124; Uggla v. Brokaw, 102 N.Y.S. 857, 117 A.D. 586; Larrabee v. Des Moines Tent & Awning Co., 189 Iowa 319, 178 N.W. 373. (2) The trial court erred in so directing a verdict for the Caradine Hat Company since, as tenant, it was in possession and control of the building at the time of the accident, was responsible for the maintenance and repair of the building, and thereby prima facie liable to plaintiff, a pedestrian on an adjoining sidewalk, injured by the fall of a piece of the building. 16 R. C. L. 1095; 7 A. L. R. 211; Shouse v. Dubinsky, 38 S.W.2d 530; Green v. Carigianir, 217 Mass. 1, 104 N.E. 571; Lee v. McLaughlin, 86 Me. 410, 30 A. 65. This error was prejudicial to this appellant inasmuch as it affected appellant's liability to the plaintiff, affected possible rights of contribution, destroyed and extinguished their appellant's defense that its tenant was in possession and control and, therefore, liable to plaintiff if there was liability on anyone, and, in effect, directed a verdict against this appellant. Under these circumstances appellant will be heard to complain of error favorable to a codefendant. Gabelman v. Bolt, 80 S.W.2d 171; Nevins v. Solomon, 139 S.W.2d 1109; Berry v. Kansas City Pub. Serv. Co., 341 Mo. 658, 10 S.W.2d 98; Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559; Story v. People's Motorbus Co., 327 Mo. 719, 37 S.W.2d 898.

Bishop, Claiborne & Heneghan for Caradine Hat Company.

There was no error in the action of the trial court in giving and reading to the jury, at the close of plaintiff's evidence, a peremptory instruction in the nature of a demurrer, for the reason that no submissible case was made as to codefendant Caradine Hat Company. Walsh v. S.W. Tel. Co., 331 Mo. 118, 52 S.W.2d 839; Roman v. King, 289, Mo. 641, 233 S.W. 973, 25 A. L. R. 1263; Bender v. Weber, 250 Mo. 551, 157 S.W. 570, 46 A. L. R. (N. S.) 121; 13 R. C. L., p. 427; 13 R. C. L., secs. 269, 270, 271, 272, pp. 326-332; McCloskey v. Koplar, 46 S.W.2d 557, 329 Mo. 527; Henry v. First Natl. Bank, 115 S.W.2d 121; Kilroy v. St. Louis, 242 Mo. 79, 145 S.W. 769; Neal v. Curtis & Co., 41 S.W.2d 543, 328 Mo. 389; Byars v. St. Louis Pub. Serv. Co., 66 S.W.2d 894, 334 Mo. 201; Stith v. Newberry, 79 S.W.2d 447, 336 Mo. 467; Berry v. K.C. Pub. Serv. Co., 108 S.W.2d 98, 341 Mo. 658; Mo. Dist. Telegraph Co. v. S.W. Bell Tel. Co., 336 Mo. 453, 79 S.W.2d 692, 93 S.W.2d 19; Fraser v. Kruger, 298 F. 693; Brewer v. Silverstein, 64 S.W.2d 289.

Dalton, C. Hyde and Bradley, CC., concur.

OPINION

DALTON

This is an action for damages for personal injuries alleged to have been caused by the negligence of defendants. At the close of plaintiff's evidence, the court gave an instruction directing a verdict for defendant Caradine Hat Company, and plaintiff took an involuntary nonsuit as to said defendant with leave to move to set the same aside. The jury returned a verdict for plaintiff against defendant Laclede Real Estate and Investment Company for $ 15,000. On its motion for a new trial, a remittitur of $ 5000 was ordered. The remittitur was made and judgment was entered in favor of plaintiff and against defendant Laclede Real Estate and Investment Company for $ 10,000 and the cause dismissed as to defendant Caradine Hat Company. Plaintiff in due time moved to set aside the nonsuit and for a new trial as to defendant Caradine Hat Company (hereinafter referred to as Hat Company). The motions were overruled and plaintiff appealed from the judgment of dismissal as to said defendant. Defendant Laclede Real Estate and Investment Company (hereinafter referred to as Investment Company) appealed from the judgment rendered against it. The two appeals have been consolidated, since there is only one case and there can be only one final judgment disposing of the cause as to all parties.

We shall refer to the parties as plaintiff and defendants. Plaintiff's evidence tended to show that at about 2:30 p.m., June 27, 1939, he was seated upon a wooden box at the northwest corner of a seven story building located at the southeast corner of Fourth and Market streets in the City of St. Louis. The box was against the building on the sidewalk on the Fourth street side, and about even with the building wall and sidewalk on Market street. Plaintiff was watching workmen in Fourth street, who were operating electric hammers and electric air drills, drilling in the concrete, taking up stone, loading trucks and building a street car track in Fourth street. He was injured by a piece of terra cotta which fell from the building wall above the sidewalk, and struck him on the head, right shoulder and hand. The piece was irregular in form, 18 or 20 inches by 10 inches and 6 or 7 inches high, running to a point. It showed a fresh crack 3 1/2 inches in length, but the rest was covered with dust and dirt. The pictures and other evidence tended to show that the piece which fell was part of a block of terra cotta next to the corner in the second story sill course, trim, or cornice. These blocks were set in the wall and also extended out some distance from the face of the wall.

Plaintiff's petition alleged that the defendants and each of them owned, operated, leased, rented and maintained the exterior and interior of the building and charged, generally, that the piece of terra cotta fell as a direct and proximate result of the negligence and carelessness of defendants. The answers of both defendants were general denials.

Plaintiff offered in evidence an original lease, dated July 26, 1934, for a ten-year term from August 1, 1934, to July 31, 1944, duly executed by defendant Investment Company, as lessor, and defendant Hat Company, as lessee, and covering a lot 200 by 150 feet at the southeast corner of the intersection of Fourth and Market streets, "together with the seven story and basement building located on the north 125 feet, more or less, of the lot." This lease is the only evidence in the record to support plaintiff's allegation that the defendants and each of them owned, operated, leased, and rented the building. The terms of the lease are important.

The aggregate rental, which lessee agreed to pay lessor, for the premises was $ 194,750, payable in installments, with a payment of of $ 1,798.33 acknowledged. The building was leased for the sole purpose or business of manufacture and sale of hats and kindred merchandise, and any other business not more hazardous or damaging to the building, or which did not interfere with auction sales held on the seventh floor. The vacant lot was leased for parking automobiles and for filling station purposes. The lease was not assignable without the written consent of the lessor, except on certain conditions, with permission granted as to particular subrentals on particular conditions.

The lessee agreed to accept the building in its then condition. Permission was granted for certain specific changes in the building, but lessee was not to cut into any column or weaken the structure. Lessee was required to furnish lessor the plans and specifications for such changes. Lessee agreed to paint the exterior wood and metal work in 1934. Lessor agreed that it would, at its own expense, keep the roof, gutters and down-spouts in good repair during the term, and would paint the exterior wood and metal work in 1938 and 1942. In case lessor failed in its obligation, provision was made so lessee could do this work...