Stewart v. Zuellig, 47483

• Decision Date: 13 June 1960
• Docket Number: No. 1,No. 47483,47483,1
• Parties: Donald STEWART, a Minor, by and Through Donald Stewart, Sr., His Father and Next Friend, Appellant, v. Joseph ZUELLIG and Catherine Zuellig, Respondents
• Court: Missouri Supreme Court

Page 399

336 S.W.2d 399

Donald STEWART, a Minor, by and Through Donald Stewart, Sr. His Father and Next Friend, Appellant, v. Joseph ZUELLIG and Catherine Zuellig, Respondents.

No. 47483.

Supreme Court of Missouri, Division No. 1.

June 13, 1960.

Louis Beck, Douglas MacLeod, St. Louis, for appellant.

Schwartz, James & Sweet, Harry M. James, St. Louis, Joseph Nessenfeld, St. Louis, of counsel, for respondents.

DALTON, Judge.

Action for $50,000 damages for personal injuries alleged to have been sustained by plaintiff, a 29-months-old child, by reason of defendants' alleged negligence in repairing a rear porch causing plaintiff to fall to the sidewalk below. At the close of plaintiff's evidence, the court directed a verdict for defendants and judgment was entered thereon. Plaintiff has appealed. The sole issue is whether or not the court erred in directing the verdict for defendants.

Plaintiff resided with his parents in a rented second floor apartment at 2900 North Twenty-Second Street in the City of St. Louis. The apartment was owned by defendants. Plaintiff's parents rented the apartment in the summer of 1955, when plaintiff was about three-months-old. The premises consisted of three rooms, a kitchen, a bedroom and a living room, the rooms being in a line, with the bedroom in the middle. Entrance to the apartment was by a stairway leading to the kitchen. Immediately adjacent to the rear of the living room was a small porch which faced the back yard. The right side of the porch, as one leaves the living room, is approximately eight inches inside the building line next to the public sidewalk. This porch was solely appurtenant to the particular apartment. No one else had access to it or the right to use it. It was too small to be used for other than storage purposes. Plaintiff's parents kept a broom, a mop, a bucket, a clothes basket and other similar household items on the porch. Access to the porch could be had only through the doorway from the living room. There were two doors in this doorway, one a permanent type which opened inwardly and the other a screen door which opened out onto the porch. The screen door was kept latched, the latch being sufficiently high so that plaintiff's mother was required to reach up for it.

The porch was about 18 feet above the ground. It was approximately 3 feet wide and 6 feet long and was supported on the rear wall of the building by two iron braces or brackets. When plaintiff's parents rented the premises, the porch was enclosed on all sides, except the side formed by the building wall, by a three foot railing or porch banister, consisting of a top railing and two three-inch boards below, so spaced that there was a space of 14 or 15 inches between them. The railing and boards extended from the building wall to the right of the apartment rear door out to posts at each of the far corners of the porch and back to the building wall to the left of the rear living room door.

In the summer of 1956, when plaintiff started to walk and became very active, his father took some boards from the back yard and used them to provide a third row of slats on the left side of the porch and on the side facing the back yard. He testafied that his reason for putting up these additional boards was to narrow the space between the slats, being fearful that plaintiff might get out on the porch and maybe fall through. He did not put an additional board on the right or street side of the porch because he didn't have enough material available. After plaintiff's father finished the work of putting on the new horizontal boards, the openings between each row of slats on the left and far side of the porch did not exceed six inches in width, but the width of the opening on the right side remained unchanged.

In February or March, 1957, defendants, at the request of plaintiff's parents, caused some repair work to be done on the parch. The work done consisted of reinforcing the porch floor and placing side braces or structural supports to the upright corner posts, which had been insecure. After this work was finished, plaintiff's father examined it and found the porch, the railing and upright posts solid and secure. Defendants did not install any additional slats in the porch banister or change the position of the existing slats or railings. The only physical change in the design or appearance of the porch resulted from the work done by plaintiff's father in the summer of 1956, when he put on the additional boards on two sides of the porch. After the boards were added by plaintiff's father and after the repairs to the porch were made by defendants, the 14 or 15 inch opening between the two slats on the right-hand or street side of the porch remained in exactly the same form it was in when the premises were rented. The top of the slat or board immediately below the 14 or 15 inch opening was 9 to 10 inches above the porch floor.

About 8 a. m. on August 5, 1957, plaintiff's mother was at home with her three children. Plaintiff, the oldest, was in the living room when his mother unlatched the screen door and went out on the porch to get a mop. Her testimony was that she 'always locked the door to the porch,' except during times when she would run inside to get something and run right back onto the porch. There is no evidence that she did or did not latch the screen door after obtaining the mop. She then went to the kitchen to warm a bottle for her youngest child. At that time, plaintiff was in the living room and the inside back door was partly open, but the screen door was closed. About five minutes later, when plaintiff's mother was going to give the bottle to the baby, she heard a child moaning or groaning, and after looking in the bedroom and living room, she went out on the porch and saw plaintiff lying on the sidewalk, about two or three feet out from the right side of the porch. His face was scratched and he seemed to be injured, so he was taken to the hospital at once.

There was evidence that plaintiff was a little over two feet tall, his legs were about one foot long or slightly longer. His father in June, prior to the occurrence, had observed that plaintiff had difficulty in stepping up a step eight to ten inches high.

No direct testimony was offered concerning plaintiff's alleged fall, or as to how he sustained his injuries. Apparently there were no eyewitnesses. One of the hospital records recited that plaintiff fell from a second story window. Plaintiff sustained a skull fracture. X-rays revealed a linear fracture extending from the region of the left orbit through the frontal bone and parietal bone into the posterior parietal region just above the posterior fontanel, and other injuries. There was no definite evidence of any depression of the fracture fragments. Plaintiff returned home from the hospital on August 8, 1957. It will be unnecessary to further review the evidence.

At the close of plaintiff's evidence, defendants moved for a directed verdict on the ground that plaintiff had failed to prove actionable negligence on the part of the defendants; that the evidence was insufficient to show that plaintiff's injuries were caused by defendants' negligence; that no submissible case was made; and that the evidence was insufficient to support a verdict for plaintiff without resort to guesswork, speculation and conjecture. As stated, the motion was sustained and judgment entered for defendants.

Appellant's brief, under 'Points Relied On,' has stated only two abstract principles of law with certain supporting authorities, but without any reference to how these abstract principles of law apply to the facts of this case. There is no statement as to what actions or rulings of the court are claimed to be erroneous or as to why it is contended the court was wrong in any of its rulings. See Supreme Court Rule 1.08(a)(3) and (d), applicable when the brief was prepared, and Civil Rule 83.05(a)(3) and (e), V.A.M.R. Respondents have made no request that the appeal be dismissed for this violation of our rules, but instead have pointed out that the record is short and only one question could be presented, to wit, the submissibility of plaintiff's case. Respondents have briefed the appeal on its merits and, in effect, ask a ruling on that basis.

The record tends to show that the trial court sustained defendants' motion on the theory that there was no adequate showing of proximate cause, however, if the motion for a directed verdict was properly ruled, the reason assigned is immaterial. Huttig v. Brennan, 328 Mo. 471, 41 S.W.2d 1054, 1062; Brown v. Moore, Mo.Sup., 248 S.W.2d 553, 556(4).

Appellant argues that a submissible case was made for the jury, because the defendants 'made inadequate repairs * * * neglected to do what obviously needed doing' and were guilty of negligence, since 'they should not have left the large opening at the street end of the porch, an opening through which a small child could readily fall.'

The first abstract statement of law in appellant's brief under 'Points Relied On' and the supporting authorities are as follows: 'Although there is ordinarily no duty on the part of the landlord to repair the demised premises, if he undertakes the work he must perform it properly, and improper or inadequate repairs which result in injury to the tenant or members of his family subject the landlord to liability to the person so injured. Lasky v. Rudman, 337 Mo. 555, 85 S.W.2d 501, 503(4, 5); Shaw v. Butterworth, 327 Mo. 622, 38 S.W.2d 57, 60(1-6); Vollrath v. Stevens, 199 Mo.App. 5, 202 S.W. 283; Kennedy v. Bressmer, Mo.App., 154 S.W.2d 401.'

The rule is stated and many authorities are reviewed in Bartlett v. Taylor, 351 Mo. 1060, 174 S.W.2d 844, 847, where the court said: '* * * if the landlord does undertake to make repairs, either voluntarily or by covenant, he must exercise reasonable care in doing so and is liable to his tenant for injuries caused by his negligence or...