Marden v. Radford

• Decision Date: 24 June 1935
• Docket Number: No. 18351.,18351.
• Citation: 84 S.W.2d 947
• Parties: MARDEN v. RADFORD.
• Court: Missouri Court of Appeals

84 S.W.2d 947

MARDEN v. RADFORD.

No. 18351.

Kansas City Court of Appeals. Missouri.

June 24, 1935.

Appeal from Circuit Court, Jackson County; Darius A. Brown, Judge.

Action by Lovinnia Marden against E. K. Radford. From a judgment for plaintiff, defendant appeals.

Affirmed.

Henry S. Conrad, L. E. Durham, Hale Houts, Ilus M. Lee, and Wright Conrad, all of Kansas City, for appellant.

Charno & Drummond, of Kansas City, for respondent.

REYNOLDS, Commissioner.

This is an action by plaintiff, filed in the circuit court of Jackson county on October 27, 1932, against the defendant to recover damages for personal injuries sustained by her on or about August 13, 1932, in a fall in a kitchenette apartment, in the Claremont Hotel located at 3129 Forest avenue, Kansas City, Mo., occupied under a contract by her with the defendant as the owner thereof, which injuries were alleged to have been occasioned by the negligence of the defendant, the particulars of which negligence appear from the petition hereinafter set out. From a judgment of $3,000 rendered against him upon the trial, defendant, after unsuccessful motions for a new trial and in arrest of judgment, appeals.

The cause was tried upon a first amended petition, which is as follows:

"Comes now plaintiff and for her cause of action against defendant, leave to file this first amended petition having been given by the court, states that now and at all the times mentioned herein, defendant is and has been the owner of the Claremont Hotel, located at what is known as 3129 Forest Avenue, in Kansas City, Missouri; that said hotel is what is known as an apartment hotel; that defendant obtained an occupation license from the City of Kansas City as a hotel keeper, by representing that he was operating a hotel; that said hotel contains about seventy-five (75) small apartments, suites of rooms and rooms; that all of said rooms and suites and apartments are completely furnished and the furnishings thereof are owned by defendant;

"That on or about the 13th day of August, 1932, plaintiff had rented from defendant and was occupying a certain kitchenette apartment or suite in said hotel, known as No. 108, which consisted of one room and a small kitchen, bath room and dressing room; that defendant furnished plaintiff, as well as all the other occupants of said hotel, gas, water, electricity for lighting and other purposes, linens, dishes, silverware, telephone and all furniture; that defendant cleaned all the windows in said hotel, including the windows in plaintiff's suite or apartment, swept the hall-ways in said hotel and kept them in order and removed garbage accumulating in plaintiff's suite or apartment; and maintained in said hotel an office and a manager; and said hotel required plaintiff to deposit the key to her apartment or suite in said office during plaintiff's absence from her suite or apartment; and maintained and employed servants and employees to care for plaintiff's said suite or apartment, as well as other suites and apartments in said hotel, and to keep the same in habitable and good condition, and otherwise retained to defendant the control and supervision over the said apartments and suites in said hotel, including that occupied by plaintiff.

"Plaintiff further states that in the kitchen of her said suite or apartment was located a sink and a drainboard; that said drainboard was a shelf-like arrangement, constructed of wood and supported by certain wooden supports or braces; that on or about the 13th day of August, 1932, plaintiff desired to turn on the electric light in her said kitchen; that said light was attached to the ceiling of said kitchen and in order to reach the switch of said light and turn the same on, it became necessary for plaintiff to stand on her tiptoes; and in order to maintain plaintiff's balance and to avoid falling, while turning on said light, plaintiff caught hold of said drainboard; and while plaintiff was in said position, in attempting to turn on said light as aforesaid, the said drainboard became detached from the wall and collapsed, causing plaintiff to be thrown to the floor of said kitchen with great force and violence and injuring her as hereinafter set forth.

"Plaintiff states that defendant failed to exercise ordinary care to keep plaintiff's said apartment or suite in a reasonably safe condition and to keep the said drainboard and the supports thereof in a reasonably safe condition, in that defendant negligently and carelessly maintained said drainboard in a weakened condition and supported by braces of insufficient strength and of rotten and decayed wood; and negligently and carelessly permitted said drainboard and the supports thereof to become weakened, rotten, decayed, unsafe and dangerous and likely to collapse and fall, and likely to cause injuries to the occupants of said apartment.

"Plaintiff states that prior to the 13th day of August, 1932, it had been customary for her and for the other occupants of said suite or apartment to maintain their balance while turning on said light, by the use of said drainboard as described herein; and that said custom and such use thereof was well known to defendant and his agents, servants and employees;

"That as a direct and proximate result of the aforesaid negligence and carelessness of defendant and of plaintiff's said fall, plaintiff's right arm was broken and the bones of said arm and the right wrist and hand were fractured, and the ligaments, muscles, nerves and tendons were torn, bruised, wrenched and injured; that she suffered what is known as a compound fracture of her right wrist; that by reason of said injuries, plaintiff has suffered much physical pain and mental anguish; that her right arm and right hand have been weakened and she has suffered a loss of the use thereof; her capacity to labor has been impaired; she has been deprived of her sleep and her natural rest; her physical efficiency and endurance have been diminished; that all of plaintiff's said damages and injuries are permanent, lasting and progressive.

"Wherefore, plaintiff prays damages against defendant in the amount of Seven Thousand Five Hundred Dollars ($7,500.00) and all costs in this behalf expended."

The defendant made answer to such first amended petition by way of general denial and a plea of contributory negligence upon the plaintiff's part.

There was evidence tending to show that the Claremont Hotel was a large 3-story building containing 75 units or apartments, some consisting of several rooms and some of kitchenette suites of several sizes, of which defendant was the lessee; that entrance to the rooms was gained through the hotel lobby, which was furnished with tables, lamps, divans, and chairs; that the guests used this lobby in the evening for lounging and playing bridge; that in this lobby was located the hotel office, in charge of the hotel manager; that there were also a telephone switchboard and the hotel desk; that, near the desk, was a pigeonhole arrangement where the mail and the keys to the rooms and apartments were kept. Defendant testified that he controlled the entire building. Defendant called his establishment the "Hotel Claremont" and had bills printed upon which appeared the name "Hotel Claremont." Defendant operated this establishment under an hotel keeper's license. It was listed in the telephone directory as an hotel, of which defendant had knowledge. Defendant was manager of another establishment called the "Linmont," but the Linmont was classified as an apartment hotel. Plaintiff occupied what defendant called a one-room kitchenette, being apartment No. 108. The plaintiff took the room furnished and equipped. Defendant furnished all of the furniture and equipment required for its use and occupancy by plaintiff. It consisted of living room furniture and kitchenette equipment with bed linen, carpets on the floor, dishes, table linens, silverware, and other articles. Defendant furnished heat, gas, water, telephone service, and electricity for the apartment, all included in the price agreed to be paid by plaintiff for the occupancy of the apartment furnished and equipped. Plaintiff cooked with gas received by the hotel through its meter and furnished by it to her apartment. It was paid for by defendant. Electricity and water were furnished in the same manner. They were furnished by the defendant on his account and, in turn, supplied by him to plaintiff. The electric current was connected by plugs in the basement of the building in such a manner that defendant, by pulling out the plugs, could disconnect the current from the apartments, including plaintiff's. A telephone was furnished to plaintiff in her apartment but was listed under the name "Claremont Hotel." Defendant subscribed for telephone service under that name. The bill therefor was presented to him and paid by him. Defendant had two switchboard operators, who connected outside calls for plaintiff with her apartment. No charge was made against plaintiff for any such service, other than that included in the price being paid by her for the apartment. Defendant maintained his offices in the basement of the hotel. He employed a manager who looked after everything concerning the hotel. This manager lived and had her home in the hotel. Defendant had in his employ a fireman who attended to the heating of the hotel and the various apartments therein, including that occupied by plaintiff. Defendant furnished a man whose duty it was to clean up inside and outside of the building and to make simple repairs. He was authorized to do minor jobs of repairing, such as cleaning sinks, installing light bulbs, and the like. If repairs were needed, however, over and above the very simple, a repairman was called in by defendant and paid by defendant. Defendant also employed painters and paperhangers, who worked as occasion required and as authorized by him. Defendant testified that he considered that he was under...