Walsh v. Southwestern Bell Tel. Co.

• Decision Date: 03 September 1932
• Docket Number: No. 31216.,31216.
• Citation: 52 S.W.2d 839
• Parties: THERESA WALSH, Administratrix of RUTH MURRAY, Appellant and Respondent, v. SOUTHWESTERN BELL TELEPHONE COMPANY, JOHN J. REARDON REALTY COMPANY, Appellant and Respondent.
• Court: Missouri Supreme Court

52 S.W.2d 839

THERESA WALSH, Administratrix of RUTH MURRAY, Appellant and Respondent, v. SOUTHWESTERN BELL TELEPHONE COMPANY, JOHN J. REARDON REALTY COMPANY, Appellant and Respondent.

No. 31216.

Supreme Court of Missouri, Division 1.

September 3, 1932.

Appeal from Circuit Court of City of St. Louis. — Hon. A.V. Lashly, Judge.

AFFIRMED.

Earl H. Painter, E.W. Clausen, William F. Coyle and James A. Waechter for Southwestern Bell Telephone Company; J.W. Jamison of counsel.

(1) The action of the trial court in granting respondent a new trial on the ground that the verdict is against the evidence will not be disturbed on appeal if there is any substantial evidence to support it, unless the case is such that no verdict in favor of defendant could ever be allowed to stand. Fitzjohn v. Trans. Co., 183 Mo. 78; Casey v. Trans. Co., 186 Mo. 229; Met. Lead and Zinc Co. v. Webster, 193 Mo. 351; Higgins v. Higgins, 243 Mo. 171; State ex rel. v. Ellison, 268 Mo. 231; Suttor v. Met. St. Ry. Co., 188 S.W. 66; McCarthy v. Trans. Co., 192 Mo. 401; Craton v. Huntsinger, 187 S.W. 48; Settles v. McGinley, 296 S.W. 848; Dorset v. Chambers, 173 S.W. 725; Culison v. Wells, 297 S.W. 370; Christensen v. Prewett, 11 S.W. (2d) 1112; Davis v. Hill Bros., 20 S.W. (2d) 930; Sofian v. Douglas, 23 S.W. (2d) 129. (a) There was substantial evidence in favor of defendant in this case, and a verdict in its favor would have been allowed to stand. Rice v. White, 239 S.W. 141; Kilroy v. St. Louis, 242 Mo. 79. (2) Even though the trial court erred in granting a new trial on the grounds assigned, if other grounds of the motion for new trial, although not assigned by the trial court, justify the court's action in granting a new trial, such action will be sustained by an appellate court. Manthcy v. Kellerman Const. Co., 311 Mo. 147; State ex rel. v. Thomas, 245 Mo. 65; Macklin v. Fogel Const. Co., 31 S.W. 19. (3) The demurrer to the evidence should have been sustained. Rice v. White et al., 239 S.W. 144; Kilroy v. St. Louis, 242 Mo. 79; Kohnle v. Paxton, 268 Mo. 463; Tailoring Co. v. Dobbin, 195 Mo. App. 435; Russell v. Sincoe Realty Co., 240 S.W. 147; Brien v. Joseph Bros. Drug Co., 248 S.W. 972. (4) Plaintiff's Instruction 1 is erroneous. Macklin v. Fogel Const. Co., 31 S.W. 19. (5) Plaintiff's Instruction 2 (on the measure of damages) is fatally defective. Smoot v. Kansas City, 194 Mo. 513; Heinz v. Rys. Co., 143 Mo. App. 41; Tinkle v. Ry. Co., 212 Mo. 471; Robinson v. Ry., 288 S.W. 113; Markley v. Kansas City, 286 S.W. 125.

Joseph C. McAtee and Philip A. Foley for respondent.

(1) The property owner who lets the property in a defective condition is not relieved from liability for injury to pedestrians by the fact that the lessee agrees to rent the property in good condition and to make tenantable repairs in all respects. 16 R.C.L. 1081; Macuso v. Kansas City, 74 Mo. App. 138; Padberg v. Kennerly, 16 Mo. App. 556. (2) The duty to keep a building or a part of it in repair is coextensive with the control retained by the landlord. 49 A.L.R. 1417, col. 2; Cory v. Luce, 297 S.W. 32. (3) Assuming that, under the terms of the lease, it was the duty of the lessee to keep the window in repair, this does not relieve respondent from liability for its failure to discharge the duty it owed to the appellant and others who might be traveling along the sidewalk. Respondent could not relieve itself of such duty to appellant and others by contract with the lessee. Rights may be assigned, but liabilities may not be. Cool v. Rohrbach, 21 S.W. (2d) 921. (4) If a window falls because of insecure defective fastenings, there is liability upon the part of the landlord, even though there may be a lease requiring the tenant to keep same in repair. Rice v. White, 239 S.W. 141. (5) The trial court has large discretion in granting a motion for a new trial where there is evidence tending to support each side of the controversy, and this discretion should not be interfered with by the appellate court unless, conceding everything asserted by the party securing a new trial, such party was not entitled to recover. Story v. August, 10 S.W. (2d) 965. (6) In jury cases the judge has broad powers in granting new trials, but discretion must not be exercised arbitrarily or unreasonably. And this discretion may be interfered with when, upon undisputed facts in the case, no verdict for defendant would be allowed to stand. Harrison v. Kresge, 261 S.W. 401; Ottomeyer v. Pritchett, 178 Mo. 165; Herbert v. Hawley, 32 S.W. (2d) 1095; Lead & Zinc Co. v. Webster, 193 Mo. 364.

John T. Sluggett, Jr., for John J. Reardon Realty Company.

STURGIS, C.

[1] Ruth Murray, plaintiff's intestate, brought this suit for personal injuries sustained by her by reason of a plate glass window falling on her while walking along the sidewalk of a public street in St. Louis in front of a building owned by defendant Southwestern Bell Telephone Company. She died after the trial and judgment and the case has been revived for the purpose of a hearing here in the name of her administratrix. In referring to plaintiff, we mean Ruth Murray, who was injured and prosecuted this suit in her own name in the trial court. At the time of plaintiff's injury the other defendant, John J. Reardon Realty Company, was occupying as a tenant the room of the Telephone Building from which the plate glass window in question fell on plaintiff, and plaintiff in her suit made both the landlord and tenant parties defendant, each being charged with negligence in maintaining the plate glass window in such unsafe condition that it fell without apparent cause on plaintiff when she was merely walking along the sidewalk. The case proceeded to trial and was submitted to a jury against both defendants, resulting in a verdict for plaintiff against the Southwestern Bell Telephone Company in the sum of $4,500 and in favor of the defendant John J. Reardon Realty Company. Thereupon the Telephone Company filed its motion for new trial, which the court sustained, and plaintiff has appealed from the order granting a new trial to that company. That appeal was granted to the St. Louis Court of Appeals, and properly so except for the fact that the plaintiff thereupon filed her motion for new trial against the defendant Realty Company. That motion was also sustained, resulting in an appeal by the Realty Company, which was properly granted to this court as the suit is for $20,000 damages. On proper motion in the Court of Appeals, the appeal of the Telephone Company was transferred to this court on the ground that the granting of an appeal to two different parties in one case does not make two cases for hearing in the appellate court or courts, but that it remains one case on appeal, and when the appeal of either appealing party vests jurisdiction in this court, the whole case must be heard here. [Morton v. Southwestern Telegraph & Telephone Co., 280 Mo. 360, 217 S.W. 831, 833; Sandusky v. Sandusky, 265 Mo. 219, 232; Connelly v. Railroad, 169 Mo. App. 272, 289.] It is pointed out in these cases that there can be only one final judgment in a case disposing of same as to all parties, and, while any or all of the parties may appeal if aggrieved by the judgment, it is yet one case on appeal and the separate appeals must be disposed of by one appellate court. [Snoqualmi Realty Co. v. Moynihan, 179 Mo. 629, 634, 78 S.W. 1014.]

[2] We also observe in this connection that, on the erroneous theory that two appeals in one case make two cases for hearing in this court unless consolidated, each appeal has been separately docketed and each appellant has separately perfected his appeal as a separate case in this court, each having filed a short transcript, separate abstracts, etc. A good many cases come to this court in this shape, causing useless expense and confusion. Such cases are usually consolidated here on motion of one party or on suggestion that the two cases be heard as one. The proper practice, however, is for the parties appealing to keep in mind that separate or cross appeals in the same case do not make separate cases in the appellate court. There is properly only one case in that appellate court which has jurisdiction as determined by the appeals when considered as one and not separately. We have a statute indicating and to some extent governing the procedure on cross appeals in the same case, which provides: "Where a writ of error is sued out or an appeal is duly taken by both parties to review the judgment or decree of a lower court, a transcript or abstract of the record filed in the superior court by either appellant or plaintiff in error may be used on both appeals or writs of error, and both shall be heard thereon in the same manner as if transcripts or abstracts had been filed by both sides: Provided, the party taking the last appeal on the record, or suing out the later writ of error, shall tender or pay to the clerk where a complete transcript is sent up, or to the opposing party where only an abstract of the record is filed in the superior court, one-half the cost or expense of such transcript, or of printing the abstract of the record." This clearly contemplates that in cross appeals or appeals by more than one party, the case retains its unity throughout the appeal and should be docketed in the appellate court as one case and only one transcript or abstract of the record filed. If the party taking the first appeal as shown by the record prepares and files the abstract of the record, as the statute contemplates, then the party last appealing may avail himself of such abstract only by paying half the cost of printing the same. Of course, the other appellant would have the right to print an additional abstract of the record as provided for respondents, and the correctness of same may be challenged and determined in the same manner. Each party would, of course, prepare his own statement, brief and argument. Where there is cross appeals in a case,...