Vollrath v. Stevens

• Decision Date: 18 February 1918
• Docket Number: No. 12751.,12751.
• Citation: 202 S.W. 283,199 Mo. App. 5
• Parties: VOLLRATH v. STEVENS.
• Court: Missouri Court of Appeals

202 S.W. 283

199 Mo. App. 5

VOLLRATH v. STEVENS.

No. 12751.

Kansas City Court of Appeals. Missouri.

February 18, 1918.

Appeal from Circuit Court, Jackson County; I. N. Watson, Special Judge.

Suit by Mary A. Vollrath against Ellen Stevens, resulting in judgment for plaintiff. Defendant's motion for new trial was sustained, and plaintiff appeals. Affirmed.

T. A. J. Mastin and Paul R. Stinson, both of Kansas City, for appellant. Scarritt, Scarritt, Jones & Miller, of Kansas City, for respondent.

BLAND, J.

This suit was brought on May 26, 1916, by plaintiff, a tenant, against defendant, her landlord, for personal injuries alleged to have been suffered by plaintiff on the 27th day of March, 1911, through the negligence of the defendant. There was a verdict and judgment for $8,125 in favor of plaintiff, which she voluntarily remitted to the sum of $7,500. Thereafter the court sustained defendant's motion for a new trial, assigning as a reason therefor:

"That the court erred in giving instruction No. 1 on behalf of the plaintiff, the court being of the opinion that the case should have been submitted to the jury on the theory that the defendant had agreed to keep the premises in repair as alleged in the petition, and because the case should not have been submitted on the theory that defendant was negligent in making the repairs."

The parties concede that plaintiff's petition proceeds upon two theories: First, that the landlord contracted to keep the premises in repair and failed to do so; second, that the landlord volunteered to make repairs, and was negligent in doing the work. Plaintiff submitted her case to the jury on the latter theory and abandoned the former. We are only concerned with that theory of the case upon which it was tried; the question for our decision being whether plaintiff made out a case on the theory submitted by her to the jury.

Plaintiff had been a tenant from month to month of the defendant for 19 years prior to the accident. The tenanted premises was an old frame house with a summer kitchen on the rear. The latter was inclosed and was a part of the house proper. There was a door connecting the kitchen to the house, but the kitchen floor was somewhat lower than the door. Reaching from the kitchen floor to the door was a pair of steps. The kitchen was used in summer for cooking, and at times in the winter for boiling dinners. In June, 1909, the steps had become very shaky and the floor beneath shaky, and w hen the steps were walked upon the floor sagged. Plaintiff complained to defendant's agent of this condition, and he made an examination of it, and told plaintiff he would have a new floor and steps put in, and that he would have the floor and supports fixed so that they would be in a safe condition. The agent sent a carpenter to the house, who tore up the floor and made other repairs that plaintiff could not see, as she was engaged at the time in nursing a sick son. After the carpenter had finished the work the floor was no longer shaky or sagging, and it and the steps appeared to plaintiff to be all right until about a week before the accident, when the steps began to slant down "a little bit and on the side." "It was hardly perceptible."

At the time of the accident plaintiff was walking from the main part of the house down the steps, intending to go to the summer kitchen. When she placed her weight on the second or lower step "the floor gave down," "and the steps went down," causing plaintiff's foot to slip, and she fell and broke her back. The steps rested upon the floor, and were nailed to what was described as a baseboard placed against the main part of the house under the door. The floor rested upon stringers, and the stringers were nailed to three props which rested on the floor of the cellar; there being a cellar under the entire house, including the summer kitchen. An examination after the accident showed that the steps had pulled away about four inches from the baseboard, and that the baseboard was in a decaying condition and rotten, and the nail holes were rotten and larger than the nails. Plaintiff's daughter went into the cellar, and there found that the floor and stringers were rotten and covered with mold, and they pulverized in the daughter's fingers. The support which was directly under the steps was rotten and in a slanting position, indicating that it had given way. The support was so rotten that plaintiff's daughter could scrape the rot loose with her finger nails. The steps overhead were green with rot. The floor under the steps had sagged down as much as two inches as far as to the door. The steps themselves were in good condition, except the ends were decayed some.

The carpenter who made the repairs in 1909 was not a witness, but there was evidence that when the carpenter repaired the steps he used part new and part old flooring. The old steps were put back after the repairs were made underneath, as the steps were in good condition at that time. There was no direct evidence as to the condition of the baseboard, flooring, stringers, and supports immediately after they had been repaired in 1909. However, there was the expert testimony of a carpenter who examined the premises shortly before the trial, and who testified that new or first-class boards, if in a dry place, would last from 25 to 30 years. Plaintiff contends that, as the materials were so rotten in 1911, or 2 years after the repairs were made, in view of the testimony that new or first-class boards in a dry place would last for 25 or 30 years, there is an inference that the material used in 1909 in making the repairs was defective, and that defendant's agent should have known of its defective condition.

The landlord was not under any obligation to make these repairs tin 1909, but, having voluntarily entered upon the task of making them, she was bound to exercise...