Mathews v. Galbraithe

• Decision Date: 07 March 1922
• Docket Number: No. 16915.,16915.
• Citation: 238 S.W. 554
• Parties: MATHEWS v. GALBFIAITHE et al.
• Court: Missouri Court of Appeals

238 S.W. 554

MATHEWS v. GALBFIAITHE et al.

No. 16915.

St. Louis Court of Appeals. Missouri.

March 7, 1922.

Appeal from Circuit Court, Franklin County; Ransom A. Brauer, Judge.

"Not to be officially published."

Action by Jennie Mathews against R. M. Galbraithe and others. From judgment for defendants on demurrer, plaintiff appeals. Affirmed.

Jessie M. Owen, of Union, and John A. Blevins, of St. Louis, for appellant.

James Booth, of Pacific, for respondents.

ALLEN, P. J.

This is an action for personal injuries alleged to have been sustained by plaintiff while a tenant of the defendants, due to the falling of plaster in a room occupied by plaintiff. The petition charges that on and prior to August 29, 1918, the defendants were the owners of a six-room brick house in the city of St. Louis, wherein, on said day, plaintiff resided with her husband as a tenant of defendants. The petition then proceeds as follows:

"Plaintiff further states that she and her said husband, William Mathews, rented said house and premises from the defendants on or about the 21st day of July, 1916, at a monthly rental of 819, and that they occupied said house and premises as tenants of the defendants from said date until the 11th day of September, 1918; that by the terms of the rental agreement between the plaintiff and her said husband and the defendants made at the time they rented said house from the defendants, as aforesaid, the defendants agreed to put said house and premises in good, safe condition and repair at their awn expense and to keep said premises and said house in good, safe condition and repair at their expense during the time that plaintiff and her said husband occupied the same as tenants of the defendants.

"Plaintiff further states that during the said tenancy of plaintiff and her said husband of said house and premises, as aforesaid, the defendants made divers repairs on said house on divers occasions; that prior to the said 29th day of August, 1918, and on or about, to wit the 15th day of July, 1918, the plastering and ceiling overhead in the rooms on the first floor of said house, composed of lime, mortar, and cement, became loose and defective and unsafe, and plaintiff notified defendants of said condition of said ceiling, and defendants agreed and promised to repair said ceiling and plastering so as to make the same safe and said rooms reasonably safe for occupancy of plaintiff and her said husband; that defendants examined the said plastering and ceiling in the rooms of said house and made some repairs thereon, but failed to repair the ceiling and plastering in the rear room on the first floor of said house, which said room was occupied by plaintiff as a bedroom where she slept at night but stated to plaintiff that there was no immediate danger of said plastering falling, and that it was not necessary for them to make such repairs at once, but that they would make such repairs within a few days and in ample time to protect plaintiff from any danger incident thereto.

"Plaintiff further states that on the said 29th day of August, 1918, she did not know of the unsafe condition of said ceiling and plastering in said room so occupied by her as her bedroom as aforesaid, but relied on the statement and promise of defendants, as aforesaid; that on said date, and while plaintiff was asleep in said room, said plastering and ceiling broke and large quantities thereof, weighing about 200 pounds fell from the ceiling upon her, striking her upon the head and face and left shoulder, and arm and left side and hip, and left leg and knee, greatly injuring her.

"Plaintiff further states that the defendants on said 29th day of August, 1918, and for a long time prior thereto, knew of, or by the exercise of reasonable care on their part for the...