Warner v. Fry

Decision Date10 April 1950
Docket NumberNo. 41458,No. 1,41458,1
Citation360 Mo. 496,228 S.W.2d 729
PartiesWARNER v. FRY
CourtMissouri Supreme Court

Louis E. Miller, Miller & Landau, B. Sherman Laudau, St. Louis, attorneys for appellant.

Moser, Marsalek, Carpenter, Cleary & Carter, Lee M. Carter and Jesse E. Bishop, St. Louis, attorneys for respondent.

HYDE, Judge.

Action from damages for personal injuries from plaster falling upon plaintiff's head and back. Plaintiff had a verdict for $20,000. However, the trial court sustained defendant's motion for judgment in accordance with her motion for directed verdict. From the judgment thereafter entered for defendant, plaintiff has appealed. The question involved is the tort liability of an owner for injuries caused by a defective condition in the interior of a building which is in the exclusive control of a tenant.

Defendant purchased the building June 19, 1944. At that time, Mrs. Katherine Steele was a month to month tenant of the entire building. She used the first floor as a tavern, known as the 'Congress Grill', where liquor was sold by the drink. She also occupied the two residential flats above. No meals were served and there was no prepared place for dancing. There were 'No Dancing' posters up, but there was evidence that some of the patrons did dance, occasionally, when Mrs. Steele was out of the room. There was a coin operated juke box and a small portable radio in the tavern. Later, a coin operated pinball machine was added. (Mrs. Steele said this was after plaintiff was injured.) The place was described as a 'neighborhood tavern.' Most of the people who came there were regular customers who were long-time acquaintances of Mrs. Steele. These patrons would frequently sit there reading newspapers, listening to baseball broadcasts and occasionally singing with the music.

Mrs. Steele paid the rent, both before and after defendant purchased the building, to Mr. Carl Mueller of the Hauschulte Real Estate Company on the tenth of each month. On July 10, 1944, Mrs. Steele showed Mr. Mueller a place in the ceiling (from which the plaster later fell) and he said he was going to make a report of it. On August 10th, she told him the ceiling was getting worse and 'it ought to be looked after.' She said: 'The next day or two after that Mr. Fry (defendant's husband) came on in and looked at it.' On August 18th, plaster fell on plaintiff while he was seated at a table drinking beer in the tavern. The plaster that fell was about 6 or 8 feet in diameter, about two and a half inches thick, and was enough to fill three tubs. Its weight was estimated at 30 to 40 pounds. The ceiling was 19 feet high. There was no evidence as to the condition of the ceiling on the date defendant bought the building.

A lease is regarded as equivalent to a sale of the premises for the term, so the general rule is that a lessor is under no obligation to repair leased premises (unless he has contracted to do so, which was not true in this case) and that he is not liable for injuries to the tenant or his invitees caused by defects therein, regardless of whether they existed at the time of the demise or thereafter came into existence. 1 Tiffany, Landlord and Tenant 556, Sec. 86, p. 649, Sec. 96; A.L.I. Restatement of Torts, Secs. 355-356; Prosser on Torts, Sec. 81; Roach v. Herz-Oakes Candy Co., 357 Mo. 1236, 212 S.W.2d 758; Lahtinen v. Continental Bldg. Co., 339 Mo. 438, 97 S.W.2d 102; Kohnle v. Paxton, 268 Mo. 463, 188 S.W. 155; Bender v. Weber, 250 Mo. 551, 157 S.W. 570, 46 L.R.A.,N.S., 121; Home Owners' Loan Corp. v. Huffman, 8 Cir., 124 F.2d 684. The principal exceptions to this rule, into which plaintiff's authorities fall, are concealment of known dangerous conditions (Restatement of Torts, Sec. 358; Tiffany, Secs. 86 and 96; Prosser, Sec. 81) likewise not shown to be true in this case; conditions dangerous to persons outside the premises, such as on a public walk or highway (Restatement, Sec. 379; Prosser, Sec. 81; Walsh v. Southwestern Bell Tel. Co., 331 Mo. 118, 52 S.W.2d 839; Kelly v. Laclede Real Estate & Investment Co., 348 Mo. 407, 155 S.W.2d 90, 138 A.L.R. 1065) which is not applicable to the facts of this case; and leasing premises, in a dangerous condition, for a purpose which involves the admission of the public. This latter exception of 'public use' is the one upon which plaintiff really relies and the only one which might be applicable to the facts of this case. As to its extent see Restatement, Sec. 359; Prosser, Sec. 81; 123 A.L.R. 870 Annotation; 130 A.L.R. 1275 Annotation; 52 C.J.S. Landlord and Tenant, Sec. 422(b)(2), p. 77; 22 Am.Jur. 534, Secs. 667-668; Tiffany, 655, Sec. 96(c). For the reasons hereinafter stated we do not think it is applicable to this case.

In Missouri, as shown by the cases above cited, we have made no distinction between premises leased for residential or commercial purposes; the same general rule has been applied to both. See also Clark v. Chase Hotel Co., 230 Mo.App. 739, 74 S.W.2d 498 and cases cited. As the cited A.L.R. Annotations show, some courts have imposed liability on the theory of nuisance but have called defects nuisances under circumstances which could only reasonably be classified as negligence. See discussion in Webel v. Yale University, 125 Conn. 515, 7 A.2d 215, 123 A.L.R. 863. Some courts have also extended the meaning of the term...

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26 cases
  • Com., by Creamer v. Monumental Properties, Inc.
    • United States
    • United States State Supreme Court of Pennsylvania
    • 5 Diciembre 1974
    ...(1967); Abby v. Billups, 35 Miss. 618, 630 (1858) ('A lease for years is a bargain and sale of the demised premises.'); Warner v. Fry, 360 Mo. 496, 228 S.W.2d 729 (1950); Sylvester Watts Smyth Realty Co. v. American Surety Co., 292 Mo. 423, 436, 238 S.W. 494, 498 (1921). Longi v. Raymond-Co......
  • King v. Moorehead
    • United States
    • Court of Appeal of Missouri (US)
    • 2 Abril 1973
    ...a conveyance of an estate in land and was equivalent to a sale of the premises for the term of the demise. Warner v. Fry, 360 Mo. 496, 228 S.W.2d 729, 730(1) (1950); 2 Powell, The Law of Real Property, § 221(1) at 178. As a purchaser of an estate in land, the tenant was subject to the stric......
  • Detling v. Edelbrock, 65048
    • United States
    • United States State Supreme Court of Missouri
    • 15 Mayo 1984
    ...injuries alleged is barred by the landlord tort immunity doctrine. See Knox v. Sands, 421 S.W.2d 497, 501 (Mo.1967); Warner v. Fry, 360 Mo. 496, 228 S.W.2d 729, 730 (1950). Appellants, apparently conceding that the common law rule bars recovery in Count I, urge us to either abrogate the rul......
  • Santa Fe Hills Golf and Country Club v. Safehi Realty Co., 48536
    • United States
    • United States State Supreme Court of Missouri
    • 11 Septiembre 1961
    ...is that the lease extension in question was a 'sale' within the meaning of the resolution adopted January 14, 1946. Warner v. Fry, 360 Mo. 496, 228 S.W.2d 729, cited by the Realty Company, held in a personal injury action that a lessor, as a general rule, is not under any obligation to repa......
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