Shaw v. Butterworth
| Decision Date | 14 April 1931 |
| Docket Number | 29351 |
| Citation | 38 S.W.2d 57,327 Mo. 622 |
| Parties | Lorraine Shaw, An Infant, by Orion D. Shaw, Her Next Friend, Appellant, v. J. L. Butterworth and James Price |
| Court | Missouri Supreme Court |
Respondents' Motion for Rehearing Overruled April 14 1931.
Appeal from Jackson Circuit Court; Hon. Clarence A. Burney Judge.
Reversed and remanded.
W. R. Hedrick, Burns & White and Dale E. Tourtelot for appellant.
(1) The court erred in sustaining defendants' instructions in the nature of a demurrer at the close of the plaintiff's testimony, and in directing a verdict for the defendants. Vollrath v. Stevens, 202 S.W. 283, 199 Mo.App. 5; Grant v. Tomlinson, 138 Mo.App. 222; Patton v. Eveker, 232 S.W. 762; Finer v. Nichols, 175 Mo.App. 525; Fumele v. Forrest (Del.), 86 A. 733; Lipschitz v. Papaport, 133 N.Y.S. 385; Horton v. Early (Okla.), 134 P. 436; Good v. VonHermert, 114 Minn. 393, 131 N.W. 466; Aldag v. Ott, 28 Ind.App. 542; Upham v. Head, 74 Kan. 17; Schoppel v. Daly, 112 La. 201; Bianchi v. DelValle, 117 La. 587; Gill v. Middleton, 105 Mass. 477; Galvin v. Beals, 187 Mass. 250; Myhre v. Schleuder, 98 Minn. 234; Carlon v. City Sav. Bank, 85 Neb. 659; Wynne v. Haight, 27 A.D. 7, 50 N.Y.S. 187; Werthheimer v. Saunders, 95 Wis. 573; Schwartz v. Apple, 48 N.Y.S. 253; Brown v. Wittner, 59 N.Y.S. 385; Lendle v. Robinson, 65 N.Y.S. 894; Sesener v. Smith, 85 N.Y.S. 834; Keating v. Mott, 86 N.Y.S. 1041; Mitchell v. Stewart, 187 Pa. 217; Little v. Macadaras, 29 Mo.App. 332, 38 Mo.App. 187; Glenn v. Hill, 210 Mo. 291, 109 S.W. 27; Ross et al. v. Haner, 258 S.W. 1036; Miller v. Geeser, 193 Mo.App. 1, 180 S.W. 3. (a) The defendant could reasonably anticipate that the plaintiff would fall out of the window if the screen were not securely fastened. Fuchs v. St. Louis, 167 Mo. 646; 45 C. J. 653, par. 27. (b) Defendants are charged with knowledge of a defective condition which is due to their own negligence in workmanship. They placed the screen in the window and they must have known that they did not securely fasten it and they will not be permitted to say they did not. 45 C. J. 653, par. 27. (c) There was an agreement between them and plaintiff's mother that the screen was to serve as a bar. (d) The evidence shows that the parents of the plaintiff rented the premises from defendant Price, paid him the rent, agreed on the amount of rent with him, made arrangements with him about moving in, and in fact had no dealings with any other person. The evidence further shows that Price made repairs, emptied the garbage, and was the means of contact between the landlord and the tenants and apparently had general charge of the building, and also that he exercised the discretion of determining who would be accepted as tenants. He would be presumed to have the authority to do the various usual things requested by tenants. The landlord is bound by his implied authority, as well as his actual authority. Typewriter Co. v. Realty Co., 165 Mo.App. 140; Badger Lumber Co. v. Ballentine, 54 Mo.App. 182. The landlord left him in charge as his sole representative, and plaintiff is justified in relying on his acts as to matters that would naturally devolve on the principal in such a business. Byxbee v. Blake, 74 Conn. 607, 57 L. R. A. 222; Gratton v. Redelshenner, 28 Wash. 370, 68 P. 879; Van Santwood v. Smith, 79 Minn. 316, 82 N.W. 642. One who is put in the place of a general manager is thereby clothed with his powers. Citizens Trust Co. v. Zane, 113 F. 596; Cotton Co. v. Supply Co., 3 Ga.App. 212, 59 S.E. 713. (2) There was sufficient evidence that the screen was defective and that such defect was the proximate cause of plaintiff's injuries.
Langworthy, Spencer & Terrell for respondents.
(1) There can be no liability on respondents because appellant's fall and injuries were not reasonably to be anticipated. (a) As a matter of law a screen in the window is not placed there for the purpose of keeping persons from falling out of the window. Egan v. Kruger, 103 N. J. L. Rep. 474. (b) There was no evidence that respondents, or either of them, knew of any defect, if any, existing in the screen. (c) There was no agreement between appellant, or her parents, and the respondents, or either of them, that the screen in question was to serve as a bar across the window. (d) There was no evidence that the respondent Price had any authority to bind the respondent Butterworth, as to the matters relied on in appellant's alleged cause of action. Craig v. Carmichael Co., 271 Mo. 516, 197 S.W. 141; 1 Meacham on Agency (2 Ed.) sec. 1048, p. 753, and p. 597, sec. 838; Peddicord v. Berk, 74 Kan. 236, 86 P. 465. (e) There was no evidence that even if the screen had not been defective it would have kept appellant from falling from the window. Harakas v. Dickie, 23 S.W.2d 651; Wilt v. Coughlin, 176 Mo.App. 275; Hunter v. Busy Bee Candy Co., 307 Mo. 656; American Brewing Assn. v. Talbot, 141 Mo. 674. (2) There was no evidence that the respondents, or either of them, undertook to repair the premises. Meyer v. Realty & Inv. Co., 292 S.W. 18; Vollrath v. Stevens, 199 Mo.App. 5, 202 S.W. 283. (a) In the absence of such undertaking there is no obligation to repair. Glenn v. Hill, 210 Mo. 291; Graff v. Brewing Co., 130 Mo.App. 618; Dailey v. Vogl, 187 Mo.App. 261; Degnan v. Doty, 246 S.W. 922; Sands v. Kansas City, 199 Mo.App. 13; Korach v. Loeffel, 168 Mo.App. 414; Corey v. Losse, 297 S.W. 32. (b) The respondents could only be liable for acts of misfeasance and not of nonfeasance. Ward v. Fagin, 101 Mo. 669; Kohnle v. Paxton, 268 Mo. 463. (c) There can be no implied warranty as to the condition of the premises. Turner v. Ragan, 229 S.W. 809; Meade v. Montrose, 173 Mo.App. 722. (3) The premises were under the exclusive control of the parents of the appellant, and respondents owed no greater duty to the appellant than to her parents. Coates v. Merriwether, 144 Mo.App. 89; Marcheck v. Klute, 133 Mo.App. 280.
Davis, C. Cooley and Westhues, CC., concur.
This is an action for damages, praying thirty thousand dollars, for personal injuries averred to have been caused as the result of the giving away of a screen in a third-story window, thus precipitating plaintiff, a four-year-old girl, to the ground below. At the close of plaintiff's case, the court announced that instructions to find for defendants would be given to the jury, and they were so marked, whereupon plaintiff took an involuntary nonsuit with leave to move to set the same aside. Such motion was filed and overruled, and plaintiff appealed.
The evidence adduced warrants the finding that defendant Butterworth was the owner, and defendant Price the janitor, of a certain apartment building at 1114 Paseo, in Kansas City, which faced east, was four stories in height, and comprised eight apartments. Plaintiff's parents rented the north third-story apartment, and became a tenant from month to month, paying a month's rent in advance, and moving in on September 16 or 17, 1925. The family comprised plaintiff's parents and seven children, including plaintiff, who was then four years of age.
Price was the janitor of the apartment building, and negotiated the renting of the apartment, and received and accepted the rental money. Mrs. Shaw, plaintiff's mother, negotiated the rental contract with the janitor, assisted by plaintiff's grandmother, Mrs. Henning, who occupied an apartment in the building. Mrs. Shaw testified that during the rental negotiations she observed that two screens were out, one in the window of the so-called west bedroom, but no examination of the window was made. She then asked the janitor for screens, advising him that she wanted them so that the children would not fall out, and he replied that he would get the screens for her; that everything would be all right when she moved in. She told the janitor that she had three little children. However, the screens were not put in, and she had to ask the janitor for them, but he was able to procure only one screen, and that was placed in the window in said west bedroom. In putting it in, the janitor stood in the room and forced the screen in. She looked at it, and said it looked as good as she thought it ought to; that, without examining it, it looked all right to her.
A first cousin of the plaintiff was the only witness who observed the occurrence of plaintiff's fall. Plaintiff's sisters, one a twin and the other two years old, were present in the room on that occasion, but they were propably too immature to testify, as was plaintiff. This cousin, who also resided in an apartment in the same building and who was then in the Manual High School and assumedly in his late teens, testified that he was in the habit of bringing candy to the babies, plaintiff and her two sisters, and that on October 17, 1925, between three and four o'clock in the afternoon, the entrance door to the apartment being unlocked as usual, he walked into the west room, where the babies were, with a bag of candy in his hand, and observed plaintiff sitting in the window with her back to the screen. He said as he went in the door, "Babies, I have got some candy for you," and plaintiff, sitting on the window sill, seemingly becoming excited when she saw the candy, pushed herself to get out of the window, forcing the screen out, and falling backwards to the ground below, suffering injuries. A little later that day she was taken to the Mercy Hospital, and remained at the hospital until shortly prior to Christmas, the first two weeks of which she was unconscious. Witness saw the screen lying on the ground next to plaintiff, when he rushed down to her, but he paid no further attention to it. That, in effect, was the last seen of the screen according to plaintiff's witnesses.
The sill of the window from which plaintiff ...
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