*1 buildings parts upon said lots other purposes. thereof for school All concur.
Anna Gray, Appellant, v. Louis Pearline Sarah Pearline. (2d)W. 802. One,
Division 1931. November appellant. & Marsaleh Allen, Moser Hartmann Sievers & *2 respondents. Lasldy George F. Holland, & Donnell Wise
(cid:127)1195 damages FERGUSON, action C. This is an a tenant recover injuries alleged falling personal from to have been sustained defendants the second floor of a house owned tenement gave “railing alleged porch” broke or when an defective said way. requested and plaintiff’s the close of case the defendants At jury g'ave to find for peremptory the court a instruction involuntary defendants, whereupon plaintiff took nonsuit. involuntary non- plaintiff’s court overruled motion to aside set suit, plaintiff appealed. appears respondents four-family, two-story, a owned brick building fronting on north side of Dickson Street
tenement City They acquired property November, St. Louis. ten- apartments 1925. There two floor rented to four each ants; occupied held separate apartment. None the tenants under from month lease, written tenants to month agreement repairs. there was no from occupied to month second floor east At month building, being thereof, north end rear platform this use of the floor tenants. The floor or second apartments and extends porch is on a level with to west across the width entire building, with sides, except next on all is enclosed *4 dividing exactly porch is railing banister. On a line the or connecting wall extending south, north from north to the banister supporting of building and the center column the of the at one end into two distinct porch porch partitioned at is thus the other. The on all sides equal size, well each enclosed sections of and defined All building. by the by except the formed the wall of banisters side within a few inches height, extend to are three feet the banisters top rails and horizontal porch floor, and consist bottom of the of n porch of the pickets or The east section vertical slats between. apart- floor to appurtenant the east connected with and is door appellant, and a window and occupied ment and rented porch. same upon of the The open section apartment in that apartment and the second-floor arrangement the west exists as to separate A stair- porch section of thereto. west the ground, ex- to the and way porch of the from each section extends stairway the each opening required for entrance cept for the on sides a banister porch completely enclosed of is section the yard of north wall the except the side formed the The building high by a fence, north is divided board run- the of the south, separates yard ning which the accessible north and to and apartments and of the second floor use of the tenants first the yard to and the available use the ten- on the east from apartments west. in the second floor The stair- ants first and appellant’s apartment way porch and leads to the east section stairway porch from the section of the yard, and west to the east yard. and second floor leads The the west the west apartment stairway appellant’s apartment not with or connected stairway .apartment and no other or build- arrangement ing is served it. The same situation and exists leading apartment, porch stairway west and to the second floor there- porch wall The south side of the is attached north of the to. building, porch supported while north side of the three corner, northeast at the columns, wooden at the one center one porch north at the of the and one northwest corner. The stairway supports column at corner also east lead- the northeast ing appellant’s apartment, the column at northwest cor- supports stairway leading ner to the west second floor north building is a window at end of the There door and apartments, each opens floor of these doors two first upon steps, a small individual of the same width six eight number, leading ground. therefrom to Between apartment porches steps leading two these small first floor and the high partition completely sep- is a to each of banister construction arating apartments the entrances thereto. This the first building runs wall and connects with the supporting upstairs porch. side of the center column of the south described, separating yards, fence, The is at- we have column runs thence north. tached the north side the same porches appurtenant apartments, The two first floor thereto and leading way in no steps independent are units and de- to each pendent upon in the use of the each other access or means apartments separate apartments upstairs Avith staimvays leading to the two same. apartments separate, independent two
The second floor apartment half complete units. east the east staimvay noted, is, separated a banister from the west as we haA^e staimvay. had the exclusive stairway appurtenant to her and the staimvay *5 Avas porch nor the used neither and that either of a common any purpose, nor Avas tenants other areaAvay necessary entrance, convenient passageway, hall or apartments in the The enjoyment of other the use and
1197 appellant porch shows that used the in connection with her evidence occupancy exercising same control she exercised over the parts apartment. other thereover lease, Appellant was tenant under renting a verbal from month month, respondents purchased property at time and there agreement repairs. whatsoever as' was no was not acquainted respondents with all personally dealings her with to the payment reference rental and the of rent agents managed were had with estate property real who for the agree- owners and she testified that had no conversation or agents tenancy regard in with the to the respondents ment after property. acquired repairs The evidence that no were made prior respondents appellant’s injury, testified repairs porch, during that no were made on of, knew that she tenancy. her January 6, 1926, appellant
On fell from her throwing She that testified she the act neighbor pillow small on second floor of a tenement passageway house on the east and across a about fifteen feet width, buildings; between the that she went of her placed porch, her hand top along left on the rail of banister pillow that side of the right hand; threw the her ground that injured. broke and she fell to the and was testimony top shows that gave rail of the banister broke or way passageway. and fell into the The witnesses who examined the rail state that “ends of the rail pulled looked like the nails had rusty through, pulled through nails wood, had didn’t it (of rail) look they sound” “the ends were like split rotten, they were worm-eaten or nails broken, were were rusty days nails.” Within a few after injury the re- spondents way gave repaired had banister which placing a top rail repaired new thereon and also appel- banisters both on on lant’s the west putting pickets. in new legal controlling principles this case are clear. In the absence agreement by put the landlord to and keep the
repair duty upon no imposed him, implied, ordinary repairs make to demised he damages m not liable repairs failure to make such personal injuries premises, by sustained reason of the thereof, by tenant, defective condition members family, of his employees, guests or invitees. 125; C. J. 36 J. C. [36 204; 16 R. C. 1030, L. 1031; Weld, Vai 17 232; v. Mo. v. Ward Fagin, 101 669, Mo. 14 738; S. W. Glenn v. 210 Hill, 291, Mo. 27; W. Paxton, S. v. 155; Corey Kohnle Mo. 188 S. W. (Mo. v. 32; Sup.), Cottey, App. Losse W. Roberts v. 100 Mo.
1198 W. App. 187 173 S. Dailey Yogl, 261, v. Mo. 886;
500, S. W. 74 (Mo. 238 W. S. 707; App.), Galbraithe Mathews v. 554.] occupy tenants, where let to several However enjoy certain all, more, use portions or two or ing- but different stairways, passage common, entrances, halls, in such portions ways held have reserved such facilities or the landlord is porches, be in control thereof with use of the tenants and to for common portions duty repair as such of maintenance and implied reasonably ordinary keep in a care to them premises and perform duty that landlord condition, and for failure safe rightfully injuries using such persons sustained liable for 212-213; 1072; 16 L. 128-129, 1037, J. R. C. Roman v. places. C. [36 551, 161; 641, Weber, 233 v. 250 Mo. King, 289 Mo. S. W. Bender Co., 257, 66 570; McGinley 157 S. W. v. Alliance 168 Mo. Trust 221 (Mo. App.), Real Co. S. Maguire Dalton v. Estate 153; S. W. Dry App. 243 Co., 142, Goods 210 Mo. S. W. 443;W. Dierkes v. 3; 269; Geeser, App. Karp Barton, 180 S. W. v. 1, v. 193 Mo. Miller 1111; Lang Hill, App. 685, App. 389, 164 144 W. 157 Mo. Mo. S. v. 698; Koenig, App. 589, 56; 137 119 W. Mo. S. S. W. Herdt v. Klute, App. 133 Mo. v. W. Marcheck 654.] part not so As of a tenement house retained and reserved tenants, or for common use of two more but the landlord particular tenant, to a
ivhich is demised and is that "* n ' possession general control, tenant’s or rule exclusive injuries applies, the landlord is not re- liable sulting part premises. defective condition in from a that question, plain
It is that section connected designed appellant’s apartment and thereto, with for the of the of that and constructed sole exclusive use tenant apartment purposes part is to all intents and apartment and respondents. from It is enclosed banis- rented ters, separated from the west section of apartment reached from the outside the ivest any apartment stairway which is not connected with private other any apartment, porch part other and does not afford access to building. no access to this section of There is apartment It is accessible any other this section alone. Neither nor arranged stairway leading is so as to available, be thereto con- necessary any tenant the use other as a means venient or occupancy of his enjoyment in the access to or any ivith by appellant in common other used tenant not nor any purpose whatsoever but used was used her alone, by appellant in connection her own conclusively the evidence private think shows purposes. We very this section constituted demised that she was actual and exclusive possession control Respondents thereof. not would therefore appellant’s injuries breaking giving be liable for caused *7 away premises appellant the defective on the demised to possession which were in her exclusive and control. urges immediately fact that after injury respondents portions caused the defective banister and other appel *'° tends to show that Porc^ rePaired possession retained
lants control entire sufficiently structure and was evidence of a substantial require question nature to of whether the landlord or had control over the section in which the defective railing located, jury. be submitted to the In such we a case as here, there express landlord, have no reservation applied test part authorities seems to be whether question premises tenants, used in common two or more subject joint user, imply to a or common from which law will a reservation of control if thereover the landlord but such exclusively by is used one tenant connection with and as a demised to such tenant then land- is lord held to have surrendered dominion control thereover Certainly to the tenant. offered had other evidence tending show por- substantial nature a common user of that premises in which tion of the the defective banister was located the subsequent repairs evidence the landlord in connection there- jury. make a would ease But fact alone that re- subsequent repairs spondents made the is not sufficient make case for in the face prima-faeie of the evidence offered appellant conclusively showing premises in which that the the defec- designed arranged use, nor tive condition existed w^ereneither used, pointed jointly were, out, in common but we have exclusively wholly appellant. in the possession and control of correctly The trial court ruled demurrer to the evidence and judgment Sturgis its should affirmed. ordered. be so Hyde, CC., concur. opinion foregoing PER 0., CURIAM: The FergusON, judges All
adopted opinion of the court. as the concur.