Martin v. Shryock Realty Co.
| Decision Date | 15 June 1942 |
| Citation | 163 S.W.2d 804,236 Mo.App. 1265 |
| Parties | JANE MARTIN, RESPONDENT, v. SHRYOCK REALTY COMPANY, A CORPORATION, AND PRUDENTIAL INSURANCE COMPANY OF AMERICA, A CORPORATION, APPELLANTS |
| Court | Kansas Court of Appeals |
Rehearing denied July 6, 1942.
Appeal from Jackson Circuit Court.--Hon. Emory H. Wright. Judge.
REVERSED.
Judgment reversed.
L. C Harper for respondent.
(1) The rulings of the trial court are presumptively correct. Fears v. Newman Mercantile Co., 156 S.W.2d 909. (2) The court committed no error in refusing defendants' peremptory instructions. Plaintiff was a lodger to whom defendants owed the duty to have the premises she occupied in reasonably safe condition. Marden v. Radford, 84 S.W.2d 947; Bigham v. Schneider, 157 S.W.2d 547-548; Hollister v. A. S. Aloe Co., 156 S.W.2d 606; Bram v. Briggs, 260 N.W. 785, 272 Mich. 38; McDonnell v. Hayman, 48 P. 948, 117 Cal. 67; Messerly v. Mercer, 45 Mo.App. 327. There was no written or formal contract on the relationship between the parties. McClintock v. Skelly Oil Co., 114 S.W.2d 181; Evans v. Peoples Bank, 222 Mo.App. 990, 6 S.W.2d 655, 656; Dobbins v. City Bond & Mfg. Co., 124 S.W.2d 1111, 1116; Woolsey v. State, 30 Tex.App 346; Whiteside v. Oasis Club, 142 S.W. 752, 753; Major v. Aetna Life Ins. Co., 260 S.W. 758; Ingram v. Mobile & O. R. Co., 30 S.W.2d 989; Clark v. Bridge Co., 324 Mo. 544, 24 S.W.2d 143; Wilson v. Neilson, 80 S.W. 711, 106 Mo.App. 501. (3) Plaintiff was not guilty of contributory negligence as a matter of law or fact. Burnison v. Souders, 35 S.W.2d 619, 623; Cummings v. Allred Hotel Corporation, 144 S.W.2d 177, 181; Brewer v. Silverstein, 64 S.W.2d 289. (4) The demurrers offered were general and were waived by joining in submission. Kirkpatrick v. American Creosoting Co., 37 S.W.2d 996, 1000-1001. (5) The court did not err in giving plaintiff's instructions "1" and "2." Weil Clo. Co. v. National Garment Co., 148 S.W.2d 586; Gibson v. City of St. Joseph, 216 S.W. 50, 52; Gately v. St. Louis S. F. Ry. Co., 56 S.W.2d 54; Thimmig v. Gen. Talking Pictures Corp., 85 S.W.2d 208, 212. (6) Appellants, by instructions, have admitted the relationship to be that of lodger. Popineau v. Waverly Brick & Coal Co., 168 Mo.App. 547, 153 S.W. 1076; Moakley v. MacAdaras, 165 Mo.App. 467, 147 S.W. 172; Mead v. South Side Bank, 14 S.W.2d 664; Schell v. F. E. Ransom Coal & Grain Co., 79 S.W.2d 543, 549; Meffert v. Lawson, 315 Mo. 1091, 287 S.W. 610; Baker v. Kansas City Ft. S. & M. R. Co., 122 Mo. 533. (7) Plaintiff's Instruction "1" is not objectionable. Bopp v. Standard Sanitary Mfg. Co., 221 Mo.App. 188, 299 S.W. 137, 140; Schewrer v. Banner Rubber Co., 227 Mo. 347, 126 S.W. 1037; Setzer v. Ulrich, 90 S.W.2d 154, 156; Kube v. St. Louis Transit Co., 103 Mo.App. 582, 78 S.W. 55; Lore v. Mfg. Co., 160 Mo. 608, 61 S.W. 678; Musick v. Dold Packing Co., 58 Mo.App. 322; Thompson v. City of Slater, 197 Mo.App. 247, 193 S.W. 971. (8) There is no error in plaintiff's Instruction "4." Nelson v. Met. St. Ry. Co., 88 S.W. 781; Abbitt v. St. Louis Transit Co., 79 S.W. 496, 497.
Ryland, Stinson, Mag & Thomson, Wright Conrad and Lawrence R. Brown for appellants.
(1) The court erred in refusing to give defendants' requested peremptory instructions directing a verdict for the defendants. (a) Relationship between defendants and plaintiff was Landlord-Tenant and not Innkeeper-Lodger. Piper Tailoring Co. v. Dobbins, 195 Mo.App. 435, 437; Mahnken v. Gillespie, 329 Mo. 51, 61-62; Burnison v. Souders, 35 S.W.2d 619, 622; Main v. Lehman, 294 Mo. 579, 243 S.W. 91; Mullen v. Sensenbrenner Merc. Co., 260 S.W. 982; Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278; Cash v. Sonken-Galamba, 322 Mo. 349, 17 S.W.2d 927; Stoll v. First National Bank, 345 Mo. 582, 134 S.W.2d 97; 32 C. J. 562, 564; 16 R. C. L. 552, sec. 23; DeLapp v. Van Closter, 136 Mo.App. 475; Messerly v. Mercer, 45 Mo.App. 327; Marden v. Radford, 229 Mo.App. 789, 84 S.W.2d 947. (b) Regardless of the status of plaintiff and defendants, the defendants were not negligent. Cates v. Evans, 142 S.W.2d 654; Watkins v. Piggly Wiggly Bird Co. (C. C. A. 8), 31 F.2d 889; Hoyt v. Woodbury, 200 Mass. 343, 86 N.E. 772, 22 L.R.A. (N. S.) 730; Hertz v. Advertiser Co., 201 Ala. 416, 78 So. 794, L.R.A. 1918 F. 137; Meyers v. Strauss, 264 S.W. 801. (c) Plaintiff was guilty of contributory negligence as a matter of law. Watkins v. Piggly Wiggly Bird Co. (C. C. A. 8), 31 F.2d 889; Meyers v. Strauss, 264 S.W. 801; Gray v. Levy (Mo. App.), 48 S.W.2d 20; Curtis v. Capital Stage Line Co., 29 S.W.2d 747, 750-751; Tuttle v. Kline, 230 Mo.App. 230, 89 S.W.2d 676. (2) The court erred in giving plaintiff's instructions "1" and "2." (a) Plaintiff was a tenant, not a lodger. Bury v. Railroad, 323 Mo.App. 483, 489; Allen v. Missouri Pacific Railroad Co., 294 S.W. 80, 89; State ex rel. v. Ellison, 270 Mo. 645; Degonia v. Railroad, 224 Mo. 565, 589; And authorities I supra. (b) By giving plaintiff's instructions "1" and "2" the court erroneously submitted to the jury a question of law in respect to what constituted plaintiff a lodger. Roach-Manigan Paving Co. v. Southwestern Surety Ins. Co., 238 S.W. 119; Hogan v. Fleming, 297 S.W. 404, 317 Mo. 524. (c) There was not a submissible case on the alternative that plaintiff was caused to fall and receive injuries by reason of the protruding plumbing trap. Raymond, Mo. Instr., Vol. I, Sec. 50, p. 62; Whitehead v. Fogelman (Mo. App.), 44 S.W.2d 261; Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47; Monsour v. Excelsior Tobacco Co. (Mo. App.), 115 S.W.2d 219; Martin v. Springfield City Water Co. (Mo. App.), 128 S.W.2d 674. (3) The court erred in giving plaintiff's Instruction "4," because it submitted as an element of damages hospital expenses which were not supported by the evidence.
Plaintiff and two daughters were occupants of a kitchenette apartment in a building known as the Sterling Apartment Hotel located at the northwest corner of 29th Street and Forest Avenue in Kansas City, Missouri, bearing street number 2840 Forest. On December 2, 1939, plaintiff fell in the bathroom of said apartment and sustained severe injuries. She sued both defendants for damages, alleging that the insurance company owned the building "and at all times herein involved, it kept, maintained, operated and controlled said hotel by and through its co-defendant, Shryock Realty Company." The apartment and the services rendered the occupants were described, and it was alleged that the defendants retained to themselves the general supervisory control and possession of said hotel, including the apartment occupied by plaintiff; that all utilities and hotel services so provided were under the control and direction of defendants and were paid for by the rental charge for the apartment; "that by reason of the relationship of hotel keeper and guest or lodger, existing between defendants and plaintiff, they owed to her the duty to maintain and keep said hotel, and particularly the part thereof occupied by her, in a condition free from unsafe hazards as hereinafter set out." It is next alleged "that the bathroom floor level was slightly higher than said hallway floor level, making a perpendicular offset of such height as to constitute a stumbling hazard at the entrance of said bathroom, which offset was poorly lighted; that defendants failed to guard and protect said stumbling hazard by a gradually inclined threshold, or otherwise; that inside of said bathroom in close proximity to said stumbling hazard, defendant kept and maintained a plumbing cleanout, consisting of a pipe protruding upward through the floor with a cap held in place by a large metal tap of sharp corners and edges so protruding above the floor level, and so placed and unguarded as to render the use of the bathroom unsafe, especially in connection with said doorway stumbling hazard; that although said unsafe and hazardous conditions were well known to defendants, they continued to maintain same without remedy or relief from such conditions, therein failing to keep said hotel building and premises in a condition reasonably safe for the use of its guests and lodgers, including plaintiff." It was further alleged that through the negligent and unsafe construction and maintenance, and poorly lighted and unguarded condition, plaintiff was caused to stumble on the bathroom entrance way and to fall, striking her right knee on the metal cleanout cap, and as a direct and proximate result of the negligence and carelessness charged and every item and element thereof acting severally and conjunctively, plaintiff was injured as further described.
The defendants answered separately with a general denial and a plea of contributory negligence.
The defendants offered no evidence except a rental agreement which was identified and read to the jury in connection with the cross examination of one of plaintiff's witnesses. At the close of all the evidence the defendants separately requested peremptory instructions to the jury to find for them. These were refused and the case was submitted to the jury under instructions offered by plaintiff and authorizing recovery upon a finding that plaintiff's occupancy was that of a lodger and not as a tenant as the terms were defined, and upon a finding that the apartment so occupied was not in a reasonably safe condition by reason of the offset in the floor levels between the hallway and bathroom, or an improperly located or protruding plumbing trap, and that plaintiff was injured by reason thereof. Instructions were allowed in behalf of defendants to the effect that their duty was limited to the exercise of ordinary care to have the premises in a reasonably safe condition; that the burden of proof was on plaintiff to prove...
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