Underwood v. Moloney

• Decision Date: 19 October 1965
• Docket Number: No. 31659,31659
• Parties: Orville UNDERWOOD, Plaintiff-Appellant, v. James MOLONEY, Administrator of the Estate of Amy Burns, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 18

397 S.W.2d 18

Orville UNDERWOOD, Plaintiff-Appellant, v. James MOLONEY, Administrator of the Estate of Amy Burns,

Defendant-Respondent.

No. 31659.

St. Louis Court of Appeals, Missouri.

Oct. 19, 1965.

Rehearing Denied Nov. 17, 1965.

Application to Transfer Denied Jan. 10, 1966.

Edward F. Downey, John J. Delabar, Lawrence E. Ehrhart, St. Louis, for plaintiff-appellant.

James & Morris, Harry M. James, St. Louis, for defendant-respondent.

ANDERSON, Judge.

This action was originally brought against Harry Burns and his wife Amy Burns. It was a suit for damages for personal injuries sustained by plaintiff, a tenant of said defendants, alleged to be due to the negligence of the latter, who were the owners of the property holding title as tenants by the entirety. Defendant, Harry Burns, died on or about November 11, 1961, and on September 27, 1962, Amy J. Burns, Executrix of the Estate of Harry Burns was substituted as a party defendant for Harry Burns, deceased. Thereafter, the action as against Amy J. Burns, Executrix of the Estate of Harry Burns was by the Court dismissed on motion of said Executrix. The cause thereafter proceeded against Amy J. Burns and the trial thereof resulted in a verdict and judgment for plaintiff in the sum of six thousand five hundred dollars. Defendant thereafter filed her motion for judgment in accordance with her motion for a directed verdict, or, in the alternative, for a new trial. The motion for judgment was by the Court sustained. It was further ruled that if said judgment be reversed by an appellate Court, the motion for new trial was sustained for error in giving Instruction 3. From this ruling of the Court, Plaintiff has appealed. After the appeal and before submission of the cause in this court, defendant Amy Burns died, and by agreement of the parties her administrator, James C. Moloney, was substituted as Respondent herein.

The facts in this case which we deem necessary to a decision of the points raised on this appeal come from the evidence introduced by plaintiff. Defendant introduced no evidence, but stood on her motion for a directed verdict offered at the close of plaintiff's case.

The premises in question was a two-family flat having four rooms downstairs and five rooms upstairs. It was known and numbered as 5812 Theodosia Street in the City of St. Louis. It was on the south side of said street. There was a front porch across a portion of the north end of the building with steps leading from the sidewalk to said porch. From the porch there were two separate doors, or entrances to said building, one leading into the downstairs flat and the other for use of the upstairs portion of the flat. Mr. and Mrs. Burns resided in the downstairs portion, and plaintiff, a tenant lived upstairs. Mr. and Mrs. Burns owned the building as tenants by the entirety. They purchased the property in 1946, and moved into the property in October of that year. Mr. and Mrs. Burns regarded it as partnership property. Whatever Mr. Burns did with reference to repairs met with Mrs. Burns approval. Rent collected was placed in a joint bank account, and taxes were paid out of this account.

Immediately inside the front door to the upstairs portion of the flat was a trap door about 4 feet long and three feet wide. This trap door was level with the floor and formed a part of it. A stairway leading to the second floor ascended southwardly from the south end of the trap door. Beneath the trap door was a stairway for the use of the upstairs tenants which descended southwardly to the basement. This stairway consisted of nine wooden steps. There was what was referred to in the evidence as a step board which ran north and south along the west wall of the building. This step board was about four feet long and six inches wide, and was located about six inches below the trap door. There was about 35 inches of head room from the trap door frame to the basement steps.

The step board at its south end rested upon an upright 4 by 4 inch board which was nailed to the basement wall about 18 inches below the trap door, with about four or five twelve penny nails. There was testimony that these nails were not long enough to hold the 4 by 4 fast to the wall, but for such purpose forty penny nails should have been used. At its north end, the step board was nailed to the upstairs stairway. The evidence does not disclose whether or not the step board was nailed to the top of the 4 by 4. The step board was used by anyone going from the stairway which led upstairs to the basement stairway, and vice versa. Because of having so small headroom space, one wishing to descend the basement stairway would be required to almost get on his hands and knees to get through the trap door. There were two lights for the illumination of the basement stairway, one hanging directly over the trap door and the other in the basement near the furnace provided for the upstairs portion of the flat. There was testimony that these lights did not illuminate the underside of the step board and its support. In order to observe how the basement stairway and step board were constructed it would be necessary to carry a light on an extension cord onto the basement stairway.

The steps leading from the trap door to the basement were there when Mr. and Mrs. Burns bought the property in October, 1946. In December, 1957, plaintiff rented the upstairs portion of the flat, and moved in sometime later. Mr. Burns handled the matter of renting with plaintiff and his wife. There was no written agreement to lease. The conversation between Mr. Burns and the Underwoods with reference to the renting was limited to a statement that the rental would be $50.00 per month, which the latter agreed to pay. Nothing was said between the parties about repairs to the premises.

Before plaintiff and his family moved into the premises and took possession under the rental agreement, Mr. Burns did some wall papering and repaired the plastering in the living room. Mr. Burns told plaintiff if there was any thing he needed done to tell him and he would have it fixed. This conversation was after plaintiff had agreed to rent the premises, and before he and his wife moved in and took possession under the agreement to rent the premises.

Mr. and Mrs. Burns retained a key to the upstairs apartment. The reason they did this was explained by Mrs. Burns, who was called as a witness by plaintiff: 'Well in case of an emergency we would have the key to go and see about a fire or anything like that, we would have the key to see about it.'

On one occasion, about a year after plaintiff moved into the premises, Mr. Burns noticed water coming down into his bathroom. His bathroom was directly underneath that of plaintiff. A drain under the floor of plaintiff's bathroom had developed a leak, and Mr. Burns called a contractor to put in a new drain, thus protecting his bathroom from the dripping water. Plaintiff testified he did not let the contractor into the apartment. Mrs. Burns testified that she thought they (she and her husband) let him in, but was not sure. This testimony with reference to the emergency created by the leak in the upstairs plumbing is the only evidence from which it could be inferred that Mr. Burns ever used the key to the front door of the premises in an emergency situation. On another occasion, after plaintiff's accident, and while he was in the...