Miller v. Geeser
| Citation | 180 S.W. 3,193 Mo.App. 1 |
| Parties | BENJAMIN MILLER, by next friend, Respondent, v. MORRIS GEESER, Appellant |
| Decision Date | 02 November 1915 |
| Court | Court of Appeal of Missouri (US) |
Argued and Submitted October 6, 1915.
Appeal from St. Louis City Circuit Court.--Hon. Eugene McQuillin Judge.
AFFIRMED.
Judgment affirmed.
Thos E. Mulvihill and R. M. Nichols for appellant.
(1) The defect complained of did not occur after the letting; it was patent; there was no concealment by the landlord; it was known to the tenant before and at the time she rented the premises, to-wit, March 15, 1911, according to her own testimony. She therefore took the apartment in that condition, and the child having no greater rights, cannot recover. Upon the tenant's own testimony the peremptory instructions should have been give. Bender v. Weber, 250 Mo. 551; Quinn v. Perham, 151 Mass. 162, 23 N.E 735; Moynihan v. Allyn, 162 Mass. 270, 38 N.E. 497; Freeman v. Hunnewell, 163 Mass. 210, 39 N.E. 1012; Andrews v. Williamson, 162 Mass. 270, 78 N.E. 737; Phelan v. Fitzpatrick, 188 Mass. 237, 74 N.E. 326; Hedekin v. Gillespie, 33 Ind.App. 650, 72 N.E. 143; Shackelford v. Coffin, 95 Me. 69, 49 A. 57; Daly v. Quick, 99 Cal. 179, 33 P. 859; Town v Armstrong, 75 Mich. 380, 42 N.W. 983; Mullen v. Rainier, 45 N. J. L. 520; Rampinsky v. Hallo, 23 N.Y.S. 114; Humphrey v. Wait, 22 U. C. C. P. 580; Ryan v. Wilson (1882), 87 N.Y. 471; Ames v. Brandvold, 119 Minn. 521, 138 N.W. 786. (2) There being no express reservation shown, the law implied a reservation extending only to the parts and places actually used by the tenants for their necessities in the use and occupation of the tenement; the stairs and part of the porch of sufficient width to admit of a means of ingress and egress and the railing around the stairs were by the law reserved to the landlord, but the part of the porch naturally segregated to the Weinberg apartment where the accident happened, was not necessary for the use and enjoyment by the Millers of their apartment and was no advantage to the landlord, and the permissive use in common by the tenants would not make such a reservation; the defect in the railing or upright ten feet from the common passageway was not a part of the common passageway. Without some evidence of a special reservation by the landlord of the Weinberg porch for use of both families, the plaintiff did not make out a case. The case should not have been submitted to the jury. Bender v. Weber, 250 Mo. 551; McGinley v. Alliance Trust Co., 168 Mo. 257; Maionica v. Piscopo, 217 Mass. 324, 104 N.E. 839; Kearines v. Cullen, 183 Mass. 298, 67 N.E. 243; Phelan v. Fitzpatrick, 188 Mass. 237, 74 N.E. 326; Flaherty v. Nieman, 125 Ia. 546, 101 N.W. 280; Saunders v. Smith Realty Co., 84 N. J. L. 276, 86 A. 404. (3) Granting that a landlord owes to his tenant's family a duty, arising under the law, to maintain the appurtenances used in common in a reasonably safe condition, and that such member of the family may sue in tort for a violation of this obligation, the landlord does not owe any greater duty to the member of the family than to the tenant himself. The opening of seven or eight inches was a reasonably safe condition so far as concerned the tenant himself or herself, because their bodies would not fall through such aperture, and as to them it was not unsafe. The plaintiff cannot recover unless he can show that condition was unsafe to the tenant. McGinley v. Alliance Trust Co., 168 Mo. 257, 56 L. R. A. 334; Marcheck v. Klute, 133 Mo.App. 281; Domenicis v. Fleisher, 195 Mass. 281, 811 N.E. 1191; Miles v. Janvrin, 196 Mass. 431, 82 N.E. 708. Eyre v. Jordon, 111 Mo. 424. (4) The landlord would not be liable in an action of tort upon an express contract to repair, the breach of which resulted in injury to the tenant. It must follow that in an action of tort, by a member of the tenant's family, for a breach of an obligation arising under the law, testimony that the defendant promised or agreed with the tenant to fix the porch was wholly inadmissible in this form of action and was prejudicial before the jury. Graf v. Brewing Co., 130 Mo.App. 618; Marcheck v. Klute, 133 Mo.App. 281; Graf v. Brewing Co., 145 Mo.App. 364; Korach v. Loeffel, 168 Mo.App. 414; Bailey v. Vogel, 187 Mo.App. 261; Glenn v. Hill, 210 Mo. 291. (5) The stenographic notes of the deceased witness' testimony was neither a deposition nor was it preserved in a bill of exceptions. It was not admissible. Padgett v. Railway, 159 Mo. 143; Beecher v. Deuser, 169 Mo. 163; Greenleaf on Evidence, sec. 437; Jones on Evidence (2d Ed.), sec. 343. (6) The petition avers that the plaintiff fell through the opening. The general instruction given for the plaintiff advises the jury that they should find for the plaintiff if the defendant failed to repair, regardless of whether he fell through the opening, or climbed up and fell over the balustrade, or fell from the porch at all. The direction that the jury must find "that the injury to the plaintiff was directly caused by the negligence of the defendant in this respect" (i. e., negligence in failing to repair), does not confine the jury to the finding that plaintiff fell through the opening. The instruction is broader than the averment of the petition, and ignores the evidence that the plaintiff climbed on the chair and fell over the balustrade, which was a part of the defense. Chink v. Westerman, 80 Mo.App. 592; Veabe v. Transit Co., 112 Mo. 351; Thomas v. Babb, 45 Mo. 386; Fitzgerald v. Hayward, 50 Mo. 523; Price v. Barnard, 70 Mo.App. 180; Wood Mch. Co. v. Babst, 56 Mo.App. 433; St. Louis Packing Co. v. Mertens, 150 Mo.App. 583; Walton v. Phoenix Ins. Co., 162 Mo.App. 316; Barr & Martin v. Johnson, 170 Mo.App. 403; Winfield v. Railroad, 257 Mo. 347; Enlow v. Cur. & F. Co., 240 Mo. 443; Hale v. Coal & Coke Co., 260 Mo. 367; Tagler v. White, 158 Mo.App. 330. (7) This general instruction is in conflict with the instructions given for defendant in that it authorizes the jury to find for the plaintiff whether the child climbed upon the chair and lost his balance and fell over the top of the railing to the ground beneath, or not, as shown by instruction No. 7 given for defendant. Bluedorn v. Mo. Pac. Ry. Co., 108 Mo. 449; Kelly v. United Ry. Co., 153 Mo.App. 114; Ridpath Bros. v. Lawrence, Manning & Cushing, 42 Mo.App. 112. (8) The general instruction for the plaintiff required the jury to find that Morris Geeser knew, or by the exercise of ordinary care should have known, of the broken or defective condition of the porch. To recover for injury received from a defective condition of premises, used in common, the burden is on the tenant injured to show that the landlord knew of the defect, or by the exercise of reasonable care should have known same; and yet the court refused to allow the defendant by his witness Manhart to show that no notice was ever given to him, as agent of defendant. Udden v. O'Reily, 180 Mo. 650; Lynch v. Swan, 167 Mass. 510, 46 N.E. 51; Idel v. Mitchell, 158 N.Y. 134, 52 N.E. 740.
Sale & Frey for respondent.
(1) (a) In this State the rule is that, with respect to those portions of a building or tenement, either expressly or impliedly reserved by the landlord, such as porches stairways and court yards, the landlord owes to his tenants the duty of exercising reasonable care to maintain such common portions in a reasonably safe condition for the use of the tenants and their families. (b) A landlord must keep the balustrade of a common porch in repair, and if, after having notice that uprights or rails are missing from the balustrade, or if after a reasonable length of time has elapsed while said rails are missing, the landlord fails to replace such uprights, and a child of a tenant is thereby injured, the landlord is unquestionably liable. (c) It is a reasonable characteristic of children to use porches of a tenement house to play on, especially where the porch in front of their own kitchen is cut off by a stairway. This creates an implied invitation on the part of the landlord. Karp v. Barton, 164 Mo.App. 389; Herdt v. Koenig, 137 Mo.App. 589; Trunk Co. v. Delano, 162 Mo.App. 402; McGinley v. Alliance Trust Co., 168 Mo. 257; Bender v. Weber, 250 Mo. 563; Looney v. McLean, 129 Mass. 33; Siggins v. McGill, 62 A. 411; Readman v. Conway, 126 Mass. 374; Burke v. Hulett, 216 Ill. 545; Sawyer v. McGillicuddy, 81 Me. 318; Dollard v. Roberts, 14 L. R. A. 238. (2) The duty of a landlord to keep in repair a porch used in common by several tenants, and the balustrade surrounding such porch, exists notwithstanding that such porch and balustrade were in disrepair at the time of the letting. The Massachusetts rule, on which appellant so largely relies, is an anachronism and has been expressly held not to be the law in this State. Lang v. Hill, 157 Mo.App. 685; Haywood v. Kuhn, 168 Mo.App. 57. (3) The rule that a landlord owes no greater legal duty to the children of a tenant than to the tenant has no application to the cause at bar, for no greater legal duty was demanded of the landlord. Karp v. Barton, 164 Mo.App. 389. (4) The evidence of a promise by a landlord to repair a general defective condition of a porch, as well as to repair the particular condition which it is alleged was responsible for the injury, is admissible in a tort action on the theory to show the personal knowledge of the landlord of the defective condition. In offering evidence as to a conversation showing such knowledge, the entire conversation is admissible and may be given in evidence. Herdt v. Koenig, 137 Mo.App. 589, 598. (5) (a) The general instruction offered by the plaintiff, and given by the court in this cause, was correct and complete. But even if it had not fully presented the defendant's position to the jury, that position was presented in the...
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