Logsdon v. Central Development Ass'n

• Citation: 123 S.W.2d 631,233 Mo.App. 499
• Parties: DAVID B. LOGSDON, RESPONDENT, v. CENTRAL DEVELOPMENT ASSOCIATION, INC., A CORPORATION, APPELLANT
• Decision Date: 05 December 1938
• Court: Court of Appeals of Kansas

123 S.W.2d 631

233 Mo.App. 499

DAVID B. LOGSDON, RESPONDENT, v. CENTRAL DEVELOPMENT ASSOCIATION, INC., A CORPORATION, APPELLANT

Court of Appeals of Missouri, Kansas City

December 5, 1938

Appeal from Jackson Circuit Court.--Hon. Thomas J. Seehorn, Judge.

REVERSED.

Judgment reversed.

Mosman Rogers, Bell & Buzard and Don E. Black for appellant.

(1) The relationship between the plaintiff and defendant, being that of landlord and tenant on a month-to-month basis, the landlord was not, in the absence of any contract to do so under any duty to make repairs upon the premises. Ward v Fagin, 101 Mo. 669, 14 S.W. 738; Kohnle v. Paxton, 268 Mo. 463, 188 S.W. 155; Lahtinen v. Continental Bldg. Co., 97 S.W.2d 102; Glenn v. Hill, 210 Mo. 291, 109 S.W. 27; McBride v. Gurney (St. Louis Court of Appeals), 185 S.W. 735; Gray v. Pearline, 328 Mo. 1192, 43 S.W.2d 802; Mahnken v. Gillespie, 329 Mo. 51, 43 S.W.2d 797; Meade v. Montrose, 173 Mo.App. 722, 160 S.W. 11; Korach v. Loeffel, 168 Mo.App. 414, 151 S.W. 790. (2) Assuming that the defendant as landlord had contracted to make repairs, his failure to comply with the contract did not give the plaintiff a right of action in tort to sue for injuries alleged to be the result of the landlord's failure to repair the premises. Glenn v. Hill, 210 Mo. 291, 109 S.W. 27; Dustin v. Curtis, 74 N.H. 266, 67 A. 220; Kohnle v. Paxton, supra; Lahtinen v. Continental Bldg. Co., 97 S.W.2d 102; Wilt v. Coughlin, 176 Mo.App. 275, 161 S.W. 888; Murphy v. Dee, 190 Mo.App. 83, 175 S.W. 287; Dailey v. Vogl, 187 Mo.App. 261, 173 S.W. 707; McBride v. Gurney, supra; Korach v. Loeffel, supra. (3) The evidence on behalf of plaintiff fails to establish any contract made by the defendant to keep the premises in repair. Restatement of the Law of Torts, sec. 357, page 968. (4) The petition stated only one cause of action against the defendant. Korach v. Loeffel, supra; Vairo v. Vairo, 99 S.W.2d 113 (St. Louis Court of Appeals); Swanson v. White & Bollard, Inc. (Wash.), 55 P.2d 332.

Henderson & Deacy for respondent.

(1) In passing on defendant's demurrer to the evidence, the truth of all the evidence favorable to the plaintiff must be conceded and the plaintiff is entitled to the full force of his own evidence and his own testimony though contradicted and to the benefit of all uncontradicted testimony, all evidence considered most favorable to him, and every reasonable inference which my be drawn from such evidence. Fernandez v. Mutual Life Insurance Company of Baltimore, 78 S.W.2d 526; Grubb v. Curry, 72 S.W.2d 863; Williams v. K. C. Southern R. Co., 257 Mo. 87, 165 S.W. 788; Van Raalte v. Grof, 299 Mo. 513, 263 S.W. 220; Grams v. Novinger, 231 S.W. 265. (2) Defendant having refused to stand on its demurrer to plaintiff's evidence, and having put in its own case such of defendant's testimony which aids the plaintiff's case, must be considered in favor of the plaintiff in passing on demurrer. Fernandez v. Mutual Life Ins. Co., supra; Lorton v. Mo. P. R. Co., 306 Mo. 125, 267 S.W. 385; Riggs v. Metropolitan S. Tr. Co., 216 Mo. 304, 115 S.W. 969; Stauffer v. Met. S. Tr., 243 Mo. 305, 147 S.W. 1032. (3) The evidence discloses that a latent or hidden defect existed in the premises owned by the defendant of which the defendant should have known but the plaintiff did not, and that the plaintiff was injured because of said defect, and under these facts the defendant is liable to the plaintiff. Streckenfinger v. Bullock, 60 S.W.2d 661; Meade v. Montrose, 173 Mo.App. 722, 160 S.W. 11; Meyers v. Russell, 124 Mo.App. 317, 101 S.W. 606; Griffin v. Freeborn, 181 Mo. 203, 168 S.W. 219. (4) Defendant had the duty to keep and maintain the premises in repair, and when the defendant assumed to repair, the said defendant assumed the burden to use ordinary care to make such repairs and since the defendant failed to use ordinary care in making said repairs, defendant was guilty of misfeasance and is liable to the plaintiff. Lasky v. Rudman, 85 S.W.2d 501; Vollrath v. Stevens, 199 Mo.App. 5, 202 S.W. 283; Finer v. Nichols, 175 Mo.App. 525, 157 S.W. 1023; Grant v. Tomlinson, 138 Mo.App. 222, 119 S.W. 1079; Bloecher v. Duerbecks Est., 333 Mo. 359, 62 S.W.2d 553; Shaw v. Butterworth, 327 Mo. 622, 38 S.W.2d 57. (5) Defendant having assumed the duty to repair, was under a duty to exercise reasonable care to discover and repair all parts so as to make it reasonably safe, and failure to do so constituted misfeasance on the part of the defendant, for which it is liable. See authorities cited under Point 4. (6) The question as to whether there was a latent defect in the faucet and whether the defendant knew of it and the plaintiff did not, and whether plaintiff's injury was caused by said defect, are questions for a jury. Streckenfinger v. Bullock, supra; Stratton v. Barnum, 263 S.W. 476; Clark v. Atchison & Eastern Bridge Co., 324 Mo. 544, 24 S.W.2d 143.

BLAND, J. Shain, P. J., concurs; Kemp, J., not sitting.

OPINION

BLAND, J.

This is an action in tort for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $ 500, and defendant has appealed.

Plaintiff, a tenant, from month to month, in defendant's office building located in the City of Independence, on November 1, 1934, while attempting to turn off the water on a lavatory in his office, cut his hand by the breaking of the porcelain handle of the faucet.

The evidence shows that plaintiff is an attorney-at-law and his offices were occupied by himself, his brother and his stenographer. There were 31 rooms in the office building in question. About a year and a half prior to the injury plaintiff rented Room No. 2 in the building and in the early part of February, 1934, he rented Room No. 3. Thereafter he conducted the business of his profession in the two rooms. The lavatory was situated in Room No. 3. There was no written agreement relative to the renting of these two rooms. The oral agreement was that defendant would furnish the heat, light, water and janitor service, keep the rooms clean and make the necessary repairs. At the time plaintiff rented Room No. 3 he agreed with defendant's manager that defendant would renovate the rooms, put them in condition and take care of any work in the way of repairs that was necessary around the office; that if any repairs were needed, or in the event anything went wrong with either of the rooms, plaintiff would take the matter up with the manager or the janitor.

The evidence further shows that defendant's manager kept keys to all of the offices in the building, including plaintiff's; that he had charge and control of the hallways, stairways, and entrance to the building, the cleaning and repairing of the rooms, the furnishing of heat, hot water and lights and the repairing of broken windows, radiators and light fixtures and other repairs that were needed. The janitor had a pass key to the offices and he would clean the latter after office hours.

The evidence further shows that the lavatory in question was used very little by plaintiff and the other individuals who occupied plaintiff's office suite, as no towels were furnished by the defendant or the occupants, whereas, defendant furnished, in the building, a general lavatory and washroom with towels. The janitor was supposed to keep the lavatory in question clean but discharged this duty indifferently. There were two faucets on the lavatory, one for cold and the other for hot water. Plaintiff testified that prior to the September before he was injured he did not use the lavatory more than once. His brother testified: "I would say it was merely an ornament and used but once a month. It was never used unless the stenographer used it, which was seldom. Q. You didn't see it used more than once a month by anybody? A. No."

Plaintiff further testified that about a month or six weeks before his injury one of the faucets was leaking and he told his brother to notify the manager "to take care of it;" that shortly after that the janitor came and did some work on the lavatory, the witness not knowing exactly what it was; that, thereafter, he did not observe the faucet leaking until the morning he was injured when he attempted to turn it off because it was leaking then.

The faucet was turned off and on by means of a porcelain handle, about the size of one's "finger," which moved horizontally. One handle contained the word "hot" and the other "cold." It was the hot water faucet that plaintiff attempted to turn off with his left hand at the time he was injured. The handle was about three inches long and was composed of porcelain fitted over a brass shank or stem about a quarter of an inch in diameter. The faucet handle was smaller at the end where it fitted on to the faucet shaft and came out and ended in a "bulbous" tip. There was no screw in the larger end of the handle. Plaintiff testified that he did not use any "unusual force," or any more than he would ordinarily use, in turning the handle on a faucet, but that it "just crushed in the palm of my hand," the left hand; that the porcelain broke into several pieces, but mainly in two large ones; that the break was lengthwise of the handle and extended down diagonally.

After the injury plaintiff noticed the broken pieces of the faucet handle. He noticed that the break started at approximately where the bulb was the thickest and extended approximately to somewhere near the center of the handle. "The break would come from this largest part of this bulbous point here and would run across, not exactly laterally, but in sort of a diagonal position down from this part here and the other part came up (indicating);" that the line of fracture was "perhaps a little below the middle of the side" and ran toward the smaller end in a ...