Kennedy v. Bressmer

• Decision Date: 07 October 1941
• Docket Number: No. 25747.,25747.
• Citation: 154 S.W.2d 401
• Parties: KENNEDY v. BRESSMER.
• Court: Missouri Court of Appeals

154 S.W.2d 401

KENNEDY v. BRESSMER.

No. 25747.

St. Louis Court of Appeals. Missouri.

October 7, 1941.

Rehearing Denied October 24, 1941.

Appeal from St. Louis Circuit Court; Charles B. Williams, Judge.

"Not to be reported in State Reports."

Action by Mary Kennedy against Frieda Bressmer to recover damages for personal injuries sustained by the plaintiff while a tenant of the defendant. The trial, with a jury, resulted in a verdict in favor of the plaintiff against the defendant for $10,000. The trial court required a remittitur of $4,000. From a judgment for the plaintiff for $6,000, the defendant appeals.

Judgment affirmed.

Jones, Hocker, Gladney & Grand, Web A. Welker, and Vincent L. Boisaubin, all of St. Louis, for appellant.

Mark D. Eagleton and Roberts P. Elam, both of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action to recover damages for personal injuries sustained by plaintiff while a tenant of defendant. The pith of the petition is as follows:

"Plaintiff further states that defendant at all times herein mentioned, owned, possessed, controlled and maintained the premises known as 2348-2348a Rutger Street, in the City of St. Louis, Missouri; that on or about the 12th day of September, 1938, plaintiff was a tenant of defendant at 2348a Rutger Street on the aforesaid premises; that shortly prior to the aforesaid date, defendants through their agents, servants, and employees did undertake to repair the porch of said premises, which said porch and its various supports, parts and railings were old, cracked, loose, weak and worn; and defendant, her agents, servants and employees, in making said repairs, did so in such a negligent and careless manner and methods that the aforesaid conditions were not remedied and the said porch, and its various supports and railings, became, and were insecure and insufficiently nailed, fastened or attached, and were unsafe, dangerous and not reasonably safe; and that on said 12th day of September, 1938, while plaintiff was using said porch and one of the railings thereof, as a direct and proximate result of the negligence and carelessness of defendant, as aforesaid, said railing gave way, directly thereby causing plaintiff to fall from said porch, and sustain the injuries hereinafter more particularly set out."

The trial, with a jury, resulted in a verdict in favor of plaintiff against defendant for $10,000. The court required a remittitur of $4,000, and judgment was entered for $6,000. Defendant appeals.

Defendant assigns error here for the refusal of her instruction in the nature of a demurrer to the evidence.

The evidence shows that defendant was the owner of a certain flat building, in the City of St. Louis, known as No. 2348 Rutger Street, and consisting of one flat on the first floor and another on the second floor. Plaintiff was for many years the tenant in the second floor flat. Her daughter lived with her. The rear porch of this second floor flat extended completely across the back of the building. It was surrounded by a rail and slat guard railing, and was connected with the ground level by a set of stairs, the upper part of the stairwell occupying the east portion of the extreme rear or south part of the porch. Another rail and slat guard railing extended westwardly from the east edge of the porch for a distance of about two-thirds of the width of the building and terminated at a vertical post at the head of the stairway, serving as a protection to keep persons from falling from the porch into the stairwell.

In the summer of 1938 the corner post of this stairwell guard railing at the head of the stairway had become loose and wobbly and in bad condition because the wood thereof had become rotted. Plaintiff and her daughter had on several occasions called the condition of the post to the attention of defendant's collector, who came every two weeks to collect the rent, and he said that he would fix it or have it fixed. Finally some three or four weeks prior to September 12, 1938, a carpenter sent by defendant made repairs to the post and fixed a slat in the guard railing. With reference to the post all that the carpenter did was to put three or four nails in it — in the rotten wood — which made it some better, though still a little wobbly and some loose.

On September 12, 1938, at about 10 o'clock p. m., plaintiff, who had been seated on the rear porch, undertook to leave the porch to go into the house to go to bed, and in so doing had occasion to use the post as a means of support. She testified in this connection as follows: "I went over and got hold of the post and the post gave way with me and I fell down the steps. I was going into the house, and with that when I put my hand on the banister the post gave way with me, and I fell down the steps. When the post gave way it went out towards the steps, and I lost my balance and I fell down the steps." After plaintiff had fallen the post was found to be loose and dangling and leaning over the stairway.

Defendant's theory is that in order to justify a recovery the facts must show that the act of defendant in making the repairs created a danger not existing before, or aggravated the danger which already existed; that if such be the case then there is negligence, otherwise not; that negligence must arise from a danger either created or increased by the act of defendant in making the repairs. Plaintiff's theory is that, when a landlord voluntarily undertakes to repair a defective and dangerous condition of premises demised by him, there is cast upon him the duty to exercise ordinary care to so repair the defective and dangerous condition as to make the premises in that connection reasonably safe for a reasonable length of time; or, in other words, that there is cast upon him the duty to exercise ordinary care in the performance of the full scope of the undertaking entered upon by him, so that if he fails to make reasonably safe for a reasonable length of time the defective and dangerous condition, he is negligent even though he did not make the defective and dangerous condition worse, or even though he may have made it better.

We are thus confronted with a question of law which makes it necessary to review the Missouri decisions.

In Finer v. Nichols, 175 Mo.App. 525, 157 S.W. 1023, 1026, plaintiff was a tenant of premises belonging to defendant. There was an outhouse on the premises, the floor of which was defective and dangerous because the boards therein were old, worn, and decayed. Plaintiff complained of the condition to defendant and requested that the floor be repaired. Pursuant to this request, defendant undertook to make repairs, and sent a carpenter to the premises for this purpose, and instead of removing the old floor and laying a new one the carpenter merely drove some nails into the old and decayed boards to fasten them in place. Afterwards, when plaintiff entered the outhouse, one of the old and decayed boards used in making the repairs broke under her weight, and she was thereby injured. In disposing of that case this court said: "There can be no doubt that a distinction exists between nonfeasance and misfeasance; that is, between a total omission to do an act which one gratuitously promises to do and a culpable negligence in the execution of it. Chancellor Kent says: `It is conceded in the English as well as in the Roman law that if a party makes a gratuitous engagement, and actually enters upon the execution of the business, and does it amiss, through the want of due care, by which damage ensues to the other party, an action will lie for this misfeasance.' 2 Kent's Com. (14th Ed.) 570. Therefore, though it be true that liability is entailed upon this principle by a misfeasance only as for doing the act undertaken amiss, it is true, too, that such misfeasance is to be ascertained and determined with reference to the scope of the undertaking. This being true, the mere fact that the floor was dangerous before and consisted of the same old and decayed boards prior to defendant's undertaking its repair is without influence whatever; for the scope of the undertaking though voluntarily assumed, was to install a new floor reasonably safe for the purpose contemplated, and the law implied the obligation to exercise ordinary care to that end."

In Vollrath v. Stevens, 199 Mo.App. 5, 202 S.W. 283, 286, the Kansas City Court of Appeals said:

"Defendant attacks plaintiff's instruction No. 1 on the ground that it submitted to the jury that defendant negligently failed to replace the weak or rotten supports to said steps and the flooring upon which they rested with reasonably safe supports, * * * so that after said repairs, if any, were made, said steps, supports and flooring remained and were unsafe.

"It is urged by defendant that under this instruction the jury might have found for plaintiff on account of defendant's nonfeasance rather than her misfeasance. It is well established in cases like this that the landlord must be guilty of misfeasance, and not nonfeasance, before he is rendered liable. Finer v. Nichols, 175 Mo.App. [525], loc. cit. 536, 157 S.W. 1023. However, when defendant voluntarily assumed to repair the defective premises she took upon herself the burden to use ordinary care to repair the premises so that they would last for a reasonable length of time, and in discharging this duty to repair, if she failed to remove rotten boards, floors, supports, and other material that should have been removed to make the place reasonably safe, she was guilty of misfeasance, and not nonfeasance. Finer v. Nichols, supra, 175 Mo.App. loc. cit. 538, 157 S.W. 1023."

What was said in the Finer case and the Vollrath case had the evident approval of this court in Patton v. Eveker, 232 S.W. 762, 764, as follows: "The defendants as landlord, in the absence of a contract to do so, were under no obligation to make repairs to the rented premises, but, having voluntarily undertaken to do...