Holland HOUFBURG, Respondent, v. KANSAS CITY STOCK YARDS COMPANY OF MAINE and Melvin F. Hart, Appellants.
No. 44526.
Supreme Court of Missouri, Division No. 1.
Sept. 12, 1955.
Motion to Remand or for Rehearing or to Transfer to Court en Banc Denied and Opinion Modified on Court‘s Own Motion Oct. 11, 1955. Opinion on Rehearing Modified on Court‘s Own Motion and Motion to Set Aside Modified Opinion and for Rehearing or to Transfer to Court en Banc Denied Nov. 14, 1955.
283 S.W.2d 539
Lyman Field, Rogers, Field & Gentry, Bernadine C. LeBerthon, Kansas City, for respondent.
Action to recover damages for personal injuries sustained by plaintiff, Holland Houfburg (respondent) on September 21, 1949, while he was in the performance of his duties as аn employee of Producers Commission Association at the Kansas City Stockyards. He obtained a verdict and judgment for $50,000 against the defendants Kansas City Stock Yards Company and Melvin F. Hart, its maintenance supervisor. The defendants have duly appealed.
For about two months prior to the accident plaintiff had worked for Producers as a yardman. His duties included the yarding, handling and watering of cattle. On the morning in question he had just completed cleaning the trough in pen 37-36 and refilling it with water. As he started to climb upon the fence the heavy trough was in some manner tipped over and plaintiff‘s left leg was caught between the trough and a feed manger. This, according to the evidence, may have been caused by plaintiff‘s weight thereon in his effort to boost himself upon the fence, or it may have been pushed over by the cattle. The injuries received by plaintiff were very painful and serious, resulting in some permanent disability. However, the view we take of the case makes it unnecessary to describe his injuries in any detail.
There was evidence from which the jury could have found that certain employees of Producers had notified the maintenance department of the Stock Yards Company three days before the accident that the trough was loose (wobbly) and needed repairing. Plaintiff‘s main instruction predicated liability upon a finding that the trough was not reasonably safe, in that it was not securely anchored to the fence and was unstable and likely to fall; that said condition had been reported to defendants and that they had had sufficient time and opportunity to repair same and negligently failed to do so and failed to maintain and place said trough in a reasonably safe condition.
Almost a year after the injury plaintiff settled his claim for workmen‘s compensation benefits against Producers and its insurer. Thereafter, this suit for damages was instituted.
At the outset defendants urge that the trial court erred in overruling their motions for a directed verdict. They argue that the injury occurred in a pen that had been leased to Producers and that the alleged failure of defendant Stock Yards Company to perform its contractual obligation to make repairs would not support an action in tort for personal injuries that may have resulted therefrom.
It appears that the relationship of landlord and tenant existed between the Stock Yards Company and Producers. This was substantially admitted by the parties since plaintiff alleged in his petition, and defendants admitted in their answers, that “defendant Kansas City Stock Yards Company leased various of its pens to various commission companies and concerns, including plaintiff‘s employer * * *.” The only substantial evidence of the details of the rental agreement came from Mr. Dillingham, the president of the Stock Yards Company, who testified that in September, 1949, the Company had an oral “leasing agreement” with Producers whereby office space and 106 pens were provided for a rental of $285 a month, plus a charge per head on each head of livestock placed in the pens. He stated that his company agreed to make repairs when notified and requested to do so and would make same at a time convenient to Producers. Likewise, it was agreed that the pens would be cleaned upon request, this being required about once a week. This witness further stated that Producers had full control of the cattle after they were unloaded from the truck or railroad car. They could place them in any pen within their leased space and had the right to exclude employees of the Stock Yards Company from the pens. Jeremiah Galvin, a former employee of Producers, said that these were Producers’ pens and when they had cattle to put in them no one else could get in there. He stated, however, that if the pens were empty others would come in and yard cattle in them. Herman Smith, an em-
A landlord, in the absence of a contract so to do, is under no obligation to make repairs to the rented premises. Mahnken v. Gillespie, 329 Mo. 51, 43 S.W.2d 797. In the instant case the Stock Yards Company (landlord) did agree to make repairs upon request. However, defendants point out that since the case of Kohnle v. Paxton, 268 Mo. 463, 188 S.W. 155, it has been well established in this state that a landlord cannot be held liable in tort for personal injuries received by a tenant, or one rightfully on leased premises, as a result of the landlord‘s breach of his covenant to repair. The tenant alone has a cause of action and that is one for damages for breach of the contract. Lahtinen v. Continental Building Co., 339 Mo. 438, 97 S.W.2d 102; Turner v. Ragan, Mo. Sup., 229 S.W. 809; Grimmeissen v. Walgreen Drug Stores, Mo. App., 229 S.W.2d 593; Home Owners’ Loan Corporation v. Huffman, 8 Cir., 124 F.2d 684; Norris v. Walker, 232 Mo.App. 645, 110 S.W.2d 404; Davis v. Cities Service Oil Co., Mo.App., 131 S.W.2d 865. For an analogous situation, see Lowery v. Kansas City, 337 Mo. 47, 85 S.W.2d 104.
We have carefully considered plaintiff‘s pleadings, proof, submission, and his brief in this court and conclude that it is plaintiff‘s contention that, while conceding that there wаs a rental arrangement whereby the Stock Yards Company rented certain facilities (including stock pens) to Producers, and conceding further that such rental or lease arrangement did in one sense constitute a landlord-tenant relationship between the Stock Yards Company and Producers, nevertheless, the arrangement under the instant circumstances was not a “mere” landlord-tenant relationship and therefore the law relating to a lessor‘s tort liability for breach of an agreement to repair is not applicable. The reason advanced by plaintiff for the inapplicаbility of the aforementioned rule is that under the terms and provisions of The Packers and Stockyards Act of 1921,
The Packers and Stockyards Act was enacted in order to remedy abuses that had grown up in the large stockyards of the country in that packers, stockyards owners, commission men and dealers were engaging in unfair, monopolistic and discriminatory practices, the details of which need not be related here. The Act provides: “It shall be the duty of every stockyard owner and market agency to furnish upon reasonable request, without discrimination, rеasonable stockyard services at such stockyard * * *” “All rates * * * shall be just, reasonable, and nondiscriminatory * * *” “It shall be the duty of every stockyard owner and market agency to establish, observe, and enforce just, reasonable and nondiscriminatory regulations and practices in respect to the furnishing of stockyard services * * *.”
In Stafford v. Wallace, 258 U.S. 495, 42 S.Ct. 397, 402, 66 L.Ed. 735, the Act was held valid and the court, after discussing the background of the legislation, stated: “The act, therefore, trеats the various stockyards of the country as great national public utilities to promote the flow of commerce from the ranges and farms of the West to the consumers in the East. It assumes that they conduct a business affected
It should be here noted that a stockyards company is not granted a franchise by the state or federal government and it does not necessarily have a monopoly. However, as we have already shown, the business is affected with a public use and is a proper subject for rеgulation because of its public nature. Stafford v. Wallace, supra.
We have indicated the general purposes of The Packers and Stockyards Act. “Congress had no intention of regulating the entire business of the livestock and meat industry. Certainly there is no indication in the history of the legislation, in the Act itself or the interpretation of it by the courts that justifies the conclusion that the Act was designed to supersede local laws pertaining to the well established principles of agency, sales of personal property, chattel mortgages and many other branches of the law. * * * the conduct prohibited always is unjust discrimination, unfair rates or practices, and unreasonable rules.” De Vries v. Sig Ellingson & Co., D.C., 100 F.Supp. 781, 786, 787, affirmed, 8 Cir., 199 F.2d 677. Subject to reasonable regulation, the right to control and conduct the business of a stockyards company remains in the company just as it did before the enactment of the Act. Acker v. United States, D.C., 12 F.Supp. 776, affirmed, 298 U.S. 426, 56 S.Ct. 824, 80 L.Ed. 1257; Farmers Union Livestock Ass‘n v. St. Paul Union Stockyards Co., D.C., 97 F.Supp. 539; Fort Worth Stockyards Co. v. Brown, Tex.Civ.App., 161 S.W.2d 549.
Plaintiff relies strongly upon a statement in Kirk v. St. Joseph Stock Yards Co., 8 Cir., 206 F.2d 283, 287, as follows: “Defendant as the owner and operator of a commercial stockyard which was a public utility subject to reasonable regulations, had the duty of furnishing, upon reasonable request, without discrimination, reasonable stockyard service and to establish, observe and enforce just, reasonable and non-discriminatory regulations and practices in respect to the furnishing of stockyard service. Packers and Stockyards Act of 1921,
The Kirk case is also relied upon by defendant Stock Yards Company in its reply brief. The actual holding in the case would appear to support the contention of said defendant. In that case, St. Joseph Stock Yards Company leased a portion of its prеmises to the Williams Feeding Company so that said company could engage in the business of feeding and caring for sheep. Plaintiff delivered a large number of sheep to Williams Feeding Company to be cared for and fed. Dogs entered the pens and chased the sheep causing the death of 471 lambs. The enclosure was not such as to prevent the entry of dogs and there was no watchman to protect the sheep from such a
What we have heretofore said will indicate our view that there is no provision in the Act that is applicable to the factual situation here presented and that would control the issue of liability as it concerns the landlord-tenant relationship existing between defendant Stock Yards Company and Producers. Thus we are required to invoke the rule, heretofore discussed, which would bar plaintiff from recovery for the injury occurring in the area rented by Producers.
Plaintiff has also called our attention to
Next, plaintiff contends that the liability of defendant Stock Yards Company is measured in the same fashion as the liability of a railroad to the employees of a shipper when the railroad furnishes the shipper with a defective car. Hе correctly states that such liability arises out of a duty imposed by law and not from privity of contract. Cases cited in support of this contention are St. Louis-San Francisco Ry. Co. v. Ewan, 8 Cir., 26 F.2d 619; Markley v. Kansas City Southern Ry. Co., 338 Mo. 436, 90 S.W.2d 409, 411-414; Settle v. Baldwin, 355 Mo. 336, 196 S.W.2d 299; Willis v. Atchison, T. & S. F. Ry. Co., 352 Mo. 490, 178 S.W.2d 341. Unquestionably, it is a carrier‘s duty to use ordinary care to deliver cars reasonably safe for the use of shippers and their employees. However, we find nothing in this rule that would impose liability on the defendants under the facts in the instant case. Liability under this rule is not imposed upon a railroad because it is a public utility. It is a common law rule relating to those furnishing chattels. It is sometimes stated generally that any person furnishing a chattel for a use in which he has a business interest may be liable for his negligence to any one who may reasonably be expected to be in the vicinity of its probable use. 2 Restatement of Torts, Section 392. A more specific statement appears in Prosser on Torts, Section 83, p. 685: “The lessor of a horse or an automobile is liable to a passenger in the vehicle or a person run down on the highway, not only if he knows that the chattel is dangerously defective at the time it is supplied, or that the person entrusted with it is incompetent to deal with it, but also if he merely fails to make reasonable inspection to discover possible defects before turning it over. The same responsibility has been imposed upon a caterer serving food to the plaintiff under contract with another, and upon a shipper of goods where a servant of the consignee is injured while unloading a defective vehicle which the shipper has furnished for transportation. Although there are cases to the contrary, the prevailing view is that a railway company is under a duty of reasonable inspection before turning over its cars, and that the obligation extends to employees of a
Finally, plaintiff contends that he was an invitee of defendant Stock Yards Company upon the premises when he was injured. He does not argue that there was any direct evidence to that effect but urges that he was impliedly invited since the use of the pen by Producers was also of mutual benefit to the Stock Yards Company as they supplied the feed and received a yardage fee for each animal placed in the pens. The cases cited by plaintiff, Gilliland v. Bondurant, 332 Mo. 881, 59 S.W.2d 679, Alexander v. Crotchett, 233 Mo.App. 674, 124 S.W.2d 534, Maisch v. Kansas City Stock Yards Co. of Maine, Mo.App., 241 S.W.2d 487, and Stafford v. Wallace, supra, do not sustain his contention. Since it appears that Producers was in possession of the pen as a tenant, it necessarily follows that plaintiff was an invitee of the tenant (his employer) and not of the Stock Yards Compаny. Bender v. Weber, 250 Mo. 551, 157 S.W. 570, 46 L.R.A.,N.S., 121; Grimmeissen v. Walgreen Drug Stores, supra.
We have concluded that plaintiff was not entitled to recover against the defendant Stock Yards Company because of the rule that a landlord cannot be held liable in tort for personal injuries received on the leased premises as a result of the landlord‘s breach of his agreement to repair, and its motion for a directed verdict should have been sustained. Since the liability of defendant Hart was based upon his negligence in the performance of his duties as maintenance supervisor (agent) of the Stock Yards Company, his motion for a directed verdict should also havе been sustained.
The judgment is reversed.
VAN OSDOL and COIL, CC., concur.
PER CURIAM.
The foregoing opinion by HOLMAN, C., is adopted as the opinion of the court.
All concur.
On Motion for Rehearing.
HOLMAN, Commissioner.
Plaintiff has filed a motion in which he prays that we modify the ruling in our opinion requiring that the judgment be reversed outright, and that the cause be remanded for a new trial in the “furtherance of justice.” In support of this motion he states that there is evidence in the record (which can be amplified upon a new trial) that as regards the pen in question the relationship between the Stockyards Company and Producers was not, in fact, that of landlord and tenant. He frankly concedes that in his petition the allegation was made thаt said defendant “leased various of its pens to various commission companies and concerns, including plaintiff‘s employer,” and that this allegation was admitted by defendants. It is further stated that when this allegation was made plaintiff was proceeding on the theory that because said defendant was made a public utility by the Packers and Stockyards Act it would make no difference as to the technical relationship existing between Producers and the Stockyards Company. He points out that the instant case is the first one in which this court has construed the Packers and Stockyards Act in respect to thе duties imposed upon stockyard companies in furnishing reasonable services to shippers and market agencies and the legal effect of the negligent performance of these duties upon claims such as the plaintiff‘s.
We are convinced from an examination of the record that the allegation concerning
The arrangement between this defendant and Producers was oral. In the event the evidence raised an issue of fact as to the relationship created by this agreement, that fact issue should be submitted to the jury under proper instructions. Marden v. Radford, 229 Mo.App. 789, 84 S.W.2d 947. In his verified motion plaintiff has stated alleged facts in the nature of newly discovered evidence. This we must disregard. However, thеre is sufficient evidence in the record before us to have authorized a submission of an issue to the jury as to whether there was, in fact, a landlord-tenant relationship. We recognized this at the time our original opinion was prepared, but such was disregarded because of the aforesaid allegation in plaintiff‘s petition.
There is evidence to indicate that the Stockyards Company allots to a commission company such pens as it appears to need and that, as compensation for such use, the commission firm will collect from the shipper a charge per head for the stock placed in the pens and transmit it to the defendant. A like arrangement is followed in regard to feed, all of which is required to be purchased from the Stockyards Company. We also refer to the testimony of Jeremiah Galvin, a yard man for Producers, as follows: “Q. Do you know who actually leased or rented those pens when they were allotted to them by the stock yards company? A. Well, as far as I am concerned or as far as I know, I never knew the pens were leased or rented to a firm because anybody could come into that alley and yard cattle any time they wanted to, if the pens were empty. I didn‘t know they were ever leased.” As we have indicated, we think (disregarding the admission in the pleadings) that the evidence would justify a submission to the jury of the issue as to whether Producers was a tenant or whether defendant remained in control of the pens and permitted Producers to use them in consideration for which Producers collected yardage from the shipper and transmitted it to defendant.
We now reach the important question as to whether we should remand the case so that plaintiff may amend his petition in such manner as will permit a determination of the aforementiоned issue upon another trial. No exact rule has been formulated which will govern this decision. The question must be determined according to the facts and circumstances in the particular case under consideration.
This court has frequently approved the statement of Judge Bennick in Smith v. Terminal R. Ass‘n of St. Louis, Mo.App., 160 S.W.2d 476, 479, that “The furtherance of justice requires that a case should not be reversed without remanding unless the appellate court is convinced that the facts are such that a recovery cannot be had; and even though the plaintiff fails to substantiate the theory upon which his case was tried, if he nevertheless shоws a state of facts which might entitle him to recover if his case were brought upon a proper theory, the judgment will not be reversed outright, but instead, in the exercise of a sound judicial discretion, the case will be remanded to give him the opportunity to amend his petition, if so advised, so as to state a case upon the theory which his evidence discloses.” See East v. McMenamy, Mo.Sup., 266 S.W.2d 728; Stone v. Farmington Aviation Corp., 363 Mo. 803, 253 S.W.2d 810; Cudney v. Midcontinent Airlines, 363 Mo. 922, 254 S.W.2d 662; White v. Wabash R. Co., 240 Mo.App. 344, 207 S.W.2d 505; O‘Neal v. Mavrakos Candy Co., Mo.Sup., 263 S.W.2d 430.
However, the rule has its restrictions. For example, we have held that where a
In the instant case plaintiff sought no strategic advantage in making the allegation. It was a misadventure resulting either from a mistaken idea of the facts or a misunderstanding of the applicability of an important rule of law. We have concluded that a prudent exercise of judicial discretion requires that this cause be reversed and remanded.
Since the case will likely be retried we should now consider two assignments in the appellant‘s original brief relating to the exclusion of evidence.
The record shows (although not disclosed to the jury) that Travelers Insurance Company, as Producer‘s insurer, paid medical expenses in the sum of $3,328.25 and workmen‘s compensation benefits to plaintiff in the sum of $1,293.75. Thus, under
During the period of his hospitalization plaintiff was treated extensively by Dr. Walton Ingham who performed a series of operations. The results of many of the medical and surgical efforts made in behalf of plaintiff were discouraging if not unfortunate. Dr. Ingham was paid $764 by Travelers Insurance Company for his services. At the trial, Dr. Ingham testified in detail as to the treatment administered to plaintiff, the severe pain suffered by him and his resulting disability. Defendants, for the purpose of showing bias and prejudice on the part of Dr. Ingham and impeaching his testimony, made an extended offer of proof (out of the hearing of the jury) which is summarized in their briefs as follows: “Defendants offered in evidence five reрorts from Dr. Ingham to Travelers Insurance Company, dated November 9, 1949, December 1, 1949, December 19, 1949, February 2, 1950, and April 26, 1950, wherein statements appeared which conflicted with his testimony at the trial. Defendants also offered to prove that he was paid by Travelers Insurance Company and employed by that company; that when the Travelers Insurance Company was defending the compensation case Dr. Ingham was prepared to testify that the disability of Holland Houfburg did not exceed 25% disability in the left leg and that Houfburg was at the time free from pain; that Dr. Ingham and his associate have performed other services for Travelers Insurance Company for which they have received substantial compensation and that Dr. Ingham knew that if his testimony was favorable to Houfburg, his employer, Travelers Insurance Company, would recover all that it had paid.” The court substantially rejected the offer since it was ruled that no evidence would be admitted and no use could be made of the exhibits which would disclose to the jury the name of the Travelers Insurance Company or that it had employed or paid Dr. Ingham or had any interest in the case.
We are convinced that the court erred in excluding this evidenсe. It may be conceded that the fact of payment by an insurer of workmen‘s compensation benefits and the consequent pro tanto subrogation of the insurer is ordinarily irrelevant in a suit of this nature and should be excluded. Pritt v. Terminal R. Ass‘n of St. Louis, Mo.Sup., 251 S.W.2d 622. However, this rule does not apply where it becomes necessary to make such a disclosure in order that the jury may properly evaluate the testimony of a witness. The interest or bias of a witness and his relation to or feelings toward the parties are never irrelevant matters. Any litigant should be freely accorded the right to cross-examine an adverse witness and the cоurt should not unduly
Defendants offered in evidence the “Report of Injury” which was apparently filed by Producers with the Division of Workmen‘s Compensation. It appeared that this was offered primarily because it recited that the injury occurred when “a steer fell in the water trough, tipping the water trough over on him [plaintiff] and pinning his foot between the water trough and the hay manger.” Plaintiff objected for the reason that the report was hearsay and not binding upon him. The objection was sustained.
It appears that Producers paid plaintiff his salary for two months following his injury ($400) and that in October, 1950, plaintiff verbally agreed with Producers that it would be repaid out of any recovery he might obtain from the defendants and this agreement was confirmed in a letter written by plaintiff‘s attorneys in 1953. It is this possible interest of Producers in the ultimate judgment that is relied upon by defendants as the basis for the admissibility of this report as an admission against interest. In considering this question it should be promptly noted that this was not offered to impeach any witness and therefore our discussion regarding the оther excluded evidence would have no application here.
We think the court ruled properly in excluding this report. We find nothing in the record that would make this report binding on the plaintiff. No authority is cited in the brief which would indicate that it would be admissible for any purpose, under the circumstances shown in this case. It should be obvious that the court could not admit in evidence a declaration that might be damaging to plaintiff simply because it may have been made by a creditor whom plaintiff had agreed to pay if he collected a judgment in the cause.
For the reasons heretofore indicated, the cause is reversed and remanded.
VAN OSDOL and COIL, CC., concur.
PER CURIAM.
The foregoing opinion by HOLMAN, C., is adopted as the opinion of the court.
All concur.