*1 407 adjudicated plaintiffs’ adversely is complaint ant’s title stands plaintiffs’ petition equitable contentions the decree here, judicata. Where, lien action; mechanic’s defense res appear adversary’s pleading, this matter pipa does jiidicata affirmatively pleaded. been held a defense has Gerardi, 142, 155, Mfg. 1038; 65 1035, v. 166 Mo. S. W. Co. [Beattie Kilpatrick 257, 262(I), 884, 212 Robert, 278 Mo. v. Mo. 885[1]; 497; Munday Knox, 411, 436(1), 487, 323 v. Mo. 18 S. W. Mathews, 657, App. 661, 204, v. 221 Mo. O’Donnell 206[2], Annotations, 8; 1325; R. R. Consult 120 L. 101 A. 34 C. J. A. L. 1058, only pleading “The on the ’’ 920, 1939, is either a demurrer or an answer. R. Stat. S. Mo. [Sec. Ann., 922, 1939, Ann., p. 926, 997. Consult Secs. S. Mo. R. Stat. pp. 1000, 1010, McMahon, Secs. Mertens 770, 774; v. 334 Mo. Smith,
66 W. (2d)
S.
Hallen v.
305 Mo.
Defendant plaintiffs’ filed motion dismiss and also additional From apparent .abstract of record. is our discussion presented we have a sufficient record before us rule the issues there is alleged plaintiffs’ no occasion a discussion of any defect in abstract, Graham, if S. defective. 142 W. [Maness (2d) 1009, and eases 1010[1], cited.] The motion to dismiss the is appeal judgment overruled is reversed cause remanded with reinstate directions to plaintiffs’ petition on the further proceed docket and with the action. Cooley and Westhues, OC., concur.
PER foregoing opinion adopted CURIAM: The C., Bohling, the opinion the judges court. All concur. Kelly, Appellant, James Madison v. Laclede & In Estate Real al., Defendants, vestment et Caradine Hat Com pany, Corporation, Respondent. Respondent, Kelly, James Madison Real Laclede Estate & Corporation, Appellant. (2d) 90. One, Division June 1941.
Rehearing Denied, July 25, 1941. *2 Gragg Kelly; J. Edward Madison M. Baron James G. counsel. Ilodgman George Lindsey A. Laclede Real Robert 8. Estate &
Bishop, Heneghan Company. Claiborne <& for Hat Caradine DALTON, damages per This is for an action for C. injuries alleged
sonal to have earised de been plaintiff’s evidence, gave At close an the court fendants. directing instruction a verdict defendant for Caradine plaintiff involuntary took nonsuit as to said defendant with leave to move to set the same aside. The a verdict for returned plaintiff defendant Laclede Real Estate Investment Com pany $15,000. trial, motion remittitur $5000 On its for new judgment was ordered. remittitur was made and was entered in n ¿against plaintiff favor of Laclede Real Estate and $10,000 cause dismissed as to defendant Caradine Hat Plaintiff in due time moved set aside the nonsuit and for a new trial as to defendant Caradine (hereinafter Hat Company Company). referred to Hat The mo plaintiff tions were overruled appealed judgment from the dismissal as to said defendant. Defendant Laclede Real Estate (hereinafter Investment Company referred Investment Com pany) appealed judgment from the rendered it. The two appeals have consolidated, been only there is one since case only there judgment can be one final disposing of the cause all parties. We shall refer to the parties and defendants. Plain- p.
tiff’s evidence tended to show that at about 2:30 June m., he was seated a wooden box at the northwest corner a seven story building located at the corner southeast of Fourth and Market streets in City of St. Louis. The box was the sidewalk on the Fourth side, street and about even *4 building wall and sidewalk on street. watching Market Plaintiff was street, workmen in Fourth who were operating electric hammers and drills, drilling electric air concrete, taking stone, loading up trucks, building and a street car track in Fourth street. He was injured by piece terra cotta which fell building from the wall above sidewalk, struck head, right and him on the and shoulder hand. piece irregular The form, was 18 or 20 inches 10 inches 6 or high, running point. and inches to a It showed a fresh crack Sy2 length, inches in but the rest was covered with dust and dirt. pictures The and other evidence tended to show that piece fell .was of block of terra cotta next to corner in the second story course, trim, sill or cornice. These blocks were set in the wall and also extended out some distance from the face of the wall. petition alleged
Plaintiff’s that the defendants and each of them owned, operated, leased, rented and maintained the exterior and interior building charged, and generally, result of proximate direct and cotta fell terra were defendants The’answers of both of defendants. carelessness and general denials. lease, July 26, 1934, original dated in evidence Plaintiff offered 31, 1944, duly August 1, July to ten-year term from for lessor, and defendant Company, as by defendant Investment executed a lot 200 150 feet at. lessee, covering and streets, and Market the intersection Fourth southeast corner of building basement located on “together story the seven and with only evi- less, lease is the feet, more or of the lot.” This north 125 allegation plaintiff’s that the defendants support dence in the record to leased, building. owned, and rented the operated, and each of them important. The the lease terms of are n agreed lessor, for aggregate rental, pay The which lessee to installments, with a $194,750, payable payment was acknowledged. for the $1,798.33 was leased sole kindred purpose or business of manufacture sale of hats and mer- chandise, any damaging more other business hazardous not. building, or which interfere with auction held to did not sales lot auto- parking seventh floor. The vacant was leased assignable filling purposes. mobiles and for The lease station was lessor, except without written consent of the on. certain condi- tions, permission granted particular particu- subrentals on lar conditions. agreed accept lessee to then Per- its condition. granted specific changes
mission was for certain -in the lessee was any not to cut into column weaken structure. required was specifications Lessee the plans furnish lessor changes. agreed paint Lessee metal exterior wood work in agreed 1934. would, keep Lessor that it expense, at its own roof, gutters down-spouts term, good repair during paint the would exterior wood and metal work in In case obligation, lessor failed in provision was made lessee so this expense. could do work at lessor’s All other alterations and lessee necessary deemed during make the term expense be made glass lessee. All at the plate risk of lessee and replaced be if broken. Permission was granted specified for certain signs, but the lessor reserved the prescribe form, size, character.and location of and all other signs placed upon any portion building. Painting on building itself prohibited. agreed Lessee to use care and reason- diligence able protect the property during the term. agreed The lessee to keep the good order *5 from any free adjacent or upon nuisance filth or thereto. The lessor reserved the upon enter premises said purpose of ex- amining the condition thereof making repairs any saw fit make. was "to At lessee surrender of the lease the'termination received, and tear ordinary wear good in as condition as excepted.” not be liable to the agreed It "lessor should was any including employees, for person, said or lessee water, rain, snow, damage property God, acts of person-or caused fire, by breakage, stoppage leakage frost, storm accidents water, plumbing upon, about or gas, heating pipes and sewer adjacent premises.” to said destroyed partially
In or rendered case was unfit occupancy, agreed speed. lessor same all reasonable destruction, damage In case extent that the of total either, repaired days, could not be elect party or rebuilt in provisions to terminate the lease." The lease for forfeiture contained by, oii provisions, certain conditions and case of sale lessor. The ’ provisions very are detailed. ' plaintiff’s At the close of and after Hat evidence Company’s peremptory jury, plaintiff instruction was read took an involuntary nonsuit as to said defendant. Defendant Investment Company then offered evidence. In view of the we conclusions reached, necessary have it will not be to review this evidence.
Plaintiff, appellant, as was contends that the evidence suffi cient make a case court erred in directing a upon verdict for said defendant. Plaintiff relies the case of Walsh v. Telephone al., Southwestern Bell Company et 331 Mo. 839. Both defendants the same case. cite In the Walsh ease, plaintiff for personal injuries sued fall caused plate glass upon window her a building passing from she the building (under lease) sidewalk. Both the tenant glass officesfrom fell, which the (lessor) and the owner of the build ing petition charged made defendants. The that defendants maintained the carelessly negligently window caused and permitted it injure plaintiff. to fall out and Each defendant denied it‘"negligently glass maintained” the window. The cause was ipsa loquitur submitted under the both -defend ants. found for the tenant, but returned a verdict for plaintiff against granted plaintiff owner. The trial court a new trial, tenant, trial, .against owner a new plaintiff. Both the appealed, tenant and plaintiff the orders granting new trials appeal were affirmed. On the owner contended trial properly granted new it, mus because there was no sub stantial evidence to support against it, verdict since her loquitur submitted cause under the res doctrine and the proof injured showed glass she fell oc cupied by The owner further contended that it had no the-tenant." duty to make that duty posses since tenant sion. opinion reviewed the at length, authorities then said *6 839): (2d) (331 certainly Mo. “The law is property dangerous that the leases it a tenant owner who in a or person receiving injury defective is liable to a third condition defect, of such though property because the be at the time under agreement, express and in of the tenant an lease or implied, that the make or repairs keep property tenant shall the ‘The repair. rule in such eases that liability is the “landlord’s respect suspended are in possession, general as soon the .tenant injuries his But occupation. commences when result to a person third from the or faulty defective the premises, .construction of ruinous condition of the demise,, their the then they time because at nuisance, only contain a even if this becomes active the tenant’s ordinary premises, the the landlord is still liable notwith- standing the lease.” Landlord (8 Ed.), and Tenant. [Taylor, 174.]’” evidence, The court held that the facts and circumstances glass having any apparent the cause, fallen without- or known glass inference be drawn that fall the was due to some could defect fastening in the construction the window to the frame. 52 S. W- The the evidence-in detail (331 court reviewed 839), to-wit, the (which provided terms of the lease that the right walls, plate lessor reserved to use exterior all but that glass at lessee, repairs risk of the and all to the demised glass be made by lessee), that the broke fact the, fell, when or the condition of the before that fastening^, fact glass other made, had had broken out been that in- surance was tenant, glass.fell carried fact that the while absent, the, defendants, tenant conflict in evidence held evidence sufficient sustain the verdicts. court evidence, that the defendant, held demurrer to"each .further sufficient, overruled, that the a properly evidence was to make against ease either or both of the defendants. The held court respective liability depended, defendants least, findings on different- of fact instruc- or inferences submitting respective tions. the cause must defendants lessor, recognize the fact one was owner and and the tenant (cid:127) liability and the basis of one was different from the other. (lessee), respondent, concedes that the facts says in the tenant, Walsh made submissible ease ease (cid:127) plate covenant with glass, reference which caused made injury, the tenant and that the liable here are different. facts ipsa It contends loquitur that res cannot be invoked here because of responsibility” case; in this here, “divided that the lease evidence while ostensibly lease for lot and contains such reserva tions that it hardly lease; plaintiff wholly failed to show ‘‘ that this had either the control control the. ’’ not have control that it did injury; causing the instrumentality written consent repair them without walls, property, lease, control lessor; terms of the that, under the clearly lessor; that reservations, was retained reasons “con control; two exclusive not have did (Hat Company) be no res therefore, there could and, co-exist trols” could not lease; made to the Reference is defendant. loquiur case this *7 repairs the and alterations in making that neither covenants
“Lessee any hereinabove premises for business necessary to fit the demised allow it, or will it . . will mentioned, any -. purpose for other nor obtained, lessor hereinafter consent of anyone to, the written without premises part or demised beam, the any column, into (a) bore in weaken the struc anything anywise which will (d) . do . . the restrictions building.” Attention is called to the said ture of signs building prohibition the to the the and on outside building is to itself. Reference made against painting on the McCloskey 527, 46 W. Koplar, 329 Mo. S. statement in res general and the principle “In doctrine 559, as follows: in resulting the apply except (a) when occurrence loquitur does not charge ordinarily happen those in use injury was such:as does not if manage care; under the (b) instrumentalities involved were due the (c) possesses the defendant control of ment and the knowledge of information the the superior or means as cause of ” ipsa loquitur It is contended under this rule the occurrence. the Company; Hat may doctrine not be invoked the any premises by not due to the the fall of the terra cotta was Hat Company; proof Company Hat and that there was no the premises actually when of terra cotta possession the fell.
We think evidence in the record was sufficient a sub- the to make Hat plaintiff Company missible case the and that the ipsa loquitur of res Com- applicable defendant Hat pany. ten-year Plaintiff offered in-evidence written Mease Company Company covering to the Hat real estate improvements. plaintiff assume to rely upon We intended rule that where existence a certain condition or state of shown, general is affairs of continuous nature arises presumption exist, contrary that such condition or state continues to is until evidence, shown either direct or circumstantial long so usual things particular of that conditions nature.' Missouri [King Ry. Company (Mo.), Pacific 263 W. By S. the terms lessee, agreed the lease, expressly keep good except repair, roof, gutters order and down-spouts, agreed lessor maintain. All repairs (except other alterations and roof, cetera) necessary et which the lessee deemed dur- make ing expense term, were to be of the lessee and these realty. From the 'to remain evidence the find of lessor relationship infer and lessee under the continued; the lease that the Hat terms of had exclusive specified right occupancy posses- control and that lease; right lessee, control, sion was who had of the lease. In any lessee, the terms case the under under the terms- lease, right occupy had the exclusive premises. use the for the lessor, although No use was reserved lessee was limited premises. restricted its use The reservations in the lease rights granted not interfere with the did to' the Hat imposed upon lease, with the duties or with the performance imposed its duties to right law as result of the building over the walls, of control was' vested in Company. Hat The Hat had control under the lease. Could sign .space the lessor have rented to others on the walls or leased the walls of other .purpose? Certainly not, because of the lease to There was no evidence from which an inference could be drawn that’ a 'wall required have any boring would into the the cutting any column or beam or weakening of the structure or *8 repair prohibited by was restricted or of terms the lease. On the other hand the lease contemplated required lessee.
Upon the evidence, terra of cotta fell for apparent no known cause. progress The work in in the street was not shown to have been unusual. The fall the piece of terra cotta to the side an walk was occurrence, unusual one which in ordinary course of things happen does not where due care is exercised. The Hat Com pany a had lease the building on and had both the repair duty maintain, and the exclusive to occupy, use, manage, and control under the terms of the lease. Plaintiff was public on the side walk building. beside These facts were sufficient from which an negligent inference of maintenance could be drawn Hat Company. directing The court erred in a verdict’for defendant Hat Company. v. Southwestern Bell Telephone Company, [Walsh Pandjiris supra; v. Oliver Cadillac Company, 711, 339 98 (2d) 969, 973; 45 1193, C. J. sec. As to tenant’s liability, gen erally, 32 see Am. Jur. 695, 817; sec. 25 Am. Jur. sec. A. L. R. 211. The Investment Company' (owner-lessor), appellant, as con
tends that the court in refusing erred to direct a verdict in its favor at the close of all the evidence; that the court erred in directing a verdict for the Hat prejudice harm and the In vestment Company; that the court erred in the giving refusing of instructions; and that the verdict is excessive.
The Company’s Investment position is well stated in 36 C. J. given up follows: a full “Where lessor has control
possession, premises appurtenances the demised to a thereto letting at the time tenant, premises were not in a dangerous continuing due to defects in or to a condition construction thereon, injuries not liable for to a personal lessor is nuisance stranger the premises ... defective condition of due to the . . occurring Thus, of the lease. . a land- .beginning after . be,liable injuries personal passenger lord sustained not will falling portions, building on the from the leased sidewalk repair, cornice, reason such lack of window tenant ’’ glass, skylights, blinds, material. or like ; L. 1063, sec. The C. “In rule.is follows: .stated R. injuries persons resulting to third case of the condition general it premises, prima leased is the rule that facie the breach duty, liability, occupant and therefore and not of that of that, landlord, liable, order render latter more must, merely than be shown or from injury were'by'him arose leased to another.” .Company posses- contends that had been out of nearly years; sion for five possession, had no exclusive man- agement building walls;. control that the Hat had occupancy physical possession exclusive n walls; that the Investment duty, was under contractual no or. of, otherwise, keep, the building in-repair; the walls it was failing not liable to maintain the. reasonably condition, safe absent existence of duty the time letting, nuisance at being on the tenant in possession; and no there was evidence of the existence fhat a nuisance evidence from which such inference could be drawn. contends, It of the block to years fall for five con- failure clusively dangerous shows not when rented. Company further contends that the doctrine of ipsa loquitur-is applicable it; that the facts do not make .negligence against a case res'ipsa loquitur it under the doctrine; *9 negligence the inference of under ipsa loquitur res the doctrine only against can party be drawn in the actual possession; and there can no presumption be negligence inference or of person management who does have the exclusive and control of the thing instrumentality caused injury complained the of. In support position of its the Company Investment cites Powell v. St. Railway, Light, Joseph Power Company, Heat and 336 1016, 81 957, (a passenger ease), and carrier and other cases. think, We this, and the cited, other cases application have here,' no any, since if the liability, the Company Investment to plaintiff of does not arise from possession, management exclusive or control of the building, upon but other facts evidence from which an inference may liability and be drawn tbe negligence Investment although it was out tenant Company, its was. . course, of negligence Of possession exclusive under inference doctrine,, solely upon ipsa loquittir pos res based exclusive injuring agency, only can and control of be drawn session control, the,exclusive possession party agency, ipsa loquitur res ease does exclude another defend a. not. v. Telephone ant facts. .upon different Southwestern Bell [Walsh The,Investment, distinguish Company.seeks to Company, supra.] .use, right- because in that case reserved the lessor case Walsh ha,d only part exterior walls the lessee of the the;.window was to the evidence,as because there construction glass, think had broken before. We immaterial. In differences support theory non-liability, cites assignments specific negligence cases based where there proof. Rice (Mo.), was a.failure of v. White 239 S. W. [See 79, City al., 242 Mo. Kilroy Louis et St. theory only In of its that an support inference of can . -against party in possession, invoked the Investment be cites 45 J.C. as follows: "Where either one of two wholly independent may responsible of each defendants complained .of, the injury ipsa the- rule of loquitur, accordance res preceding with the principles, applied. cannot 'be However, the . may against plural doctrine be availed of were, defendants who involved,- joint under circxxmstanees tort-feasors.” support In cites, statement the above authoxfity last of-its Duerr Consolidated Gas Company, App. Div. Y. large 83 N. 714. aWhere tank, by independent eoxxstrueted to the according plan contractors owner, was, delivery before owner, with water filled direction of tight, contractors to it was water test whether burst, axxd, water, causing while thus filled injuries to plaintiff epremises’ who at work on nearby, th of. loquitur applied to both owner contractor. In that case 721) the court N. (83 Supp. 714, said Y. : "It (the doctrine of ipsa loquitur) applicable- r.es ownership, possession owners on account of their premises, supervision work; applicable and it was to the because they constructed contractors tank, participated filling water, charge were in of- .with the work.” .Although, under terms the lease, the Hat Company had the- right occupy,, exclusive and control the and leased rights extent therein granted, n Company reserved the to enter the purpose for the examining the condition axxdto make such- might thereof as it see to make. evidexxce,including the lease and. pictures, was .fit sufficient to fixxd Ixxvestment owned *10 418 it; on a box the side
building plaintiff, had leased that seated and injured terra cotta adjacent piece when a walk to said fell; part that a him; only part that the block fell struck and by weather; it part fresh and a- of was old and stained break was fell had extended out from face of part piece wall; sidewalk, in the building wall, over the had been set fell for or known cause. piece apparent and that the off and no broke ipsa loquitur applicable' here and think the of res We find jury from which the infer and these facts were sufficient could negligent by defendant maintenance by fell plaintiff; terra cotta duty
breach of its plan building design, defective or construction reason-of unsuitability materials; injury resulted from plaintiff’s building (not permanent condition of the use thereof tenant); causing time injury and that the conditions existed - building to the Hat found leased If facts, liability escape these not though to-plaintiff, possession even were in the exclusive expressly agreed keep a tenant who with the landlord to had repair. Southwestern Bell Telephone v. [Walsh Co., 344, Howard v. Central Amusement 224 supra; Mass. 857, 195; 112 L. 1200, N. E. 7 R. 45 C. J. sec. A. As to owner’s injuries liability parties third caused by property, see leased Louis, 635, 646, 845; of St. City 843, Fehlhauer Wadleigh Roper (Mo. App.), 982, 984; 25 Am. Jur. 368; sec. 25 Am. Jur. 822; Am. sec. 45 C. Jur. 1200, sec. J. 771. credibility of defendants’ evidence toas the effect of vibra-
tion, weathering lapse good materials; and that time terra building cotta material, design suitable con- the building struction of and the of terra use cotta proper, jury. matters injury 'for the That the resulted tenant’s dangerous failure property leased, when was a matter of defense. We think applicable here, rules of law, both lessor
lessee-,are well stated in note in 7 A. R.L. 210-211 as follows: completed “The owner of a building adjoins a highway is person liable to a may injured passing street who by the falling any part although of the structure, premises are under exclusive control a tenant, if the negligent reason faulty construction, or the improper materials, and unsuitable is, leased, reason when that, condition liable at any time to fall of its weight. own Such a condition nuisance, constitutes a is not material that the was not constructed the owner or that the tenant has obligated himSelf repair. . . . *11 adjoins highway a completed a which “The lessee injured the fall of by who passers-by may to be prima facie liable part falling, if the thereof, the or structure, any part the to the' duty the And he a holding in lease. owes his exclusive is under management care in the and use ordinary, reasonable public to use such the when leased is budding. If condition of the of the to the nuisance, duty remedy defects, a is his as to constitute nuisance, guilty continuing a the do he is and- he does not so if injuries landlord, may any is liable for be tenant, as the as well highway.” lawfully in the person a thereby to caused Company’s rights by prejudiced Investment defendant Were a jury directing to verdict for defendant Hat read the the instruction Company complain thereof? May defendant Investment Company? plaintiff’s that evidence made a submissible case under have seen We the loquitur both defendants. One or the might depending upon plaintiff be held liable defendants to both Southwestern Bell Tele the-jury’s finding facts. [Walsh suggestion argu There is no in evidence or phone Company, supra.] that the of terra way piece at ment that was fault injure plaintiff.- did not in fact fall and Each cotta arguments here, liability and, in briefs and each seeks to denied below responsibility full on the other. place the contends that argument Company Investment
In possession; find plaintiff’s jury evidence the could that was out possession, occupáncy and control of Company that the Hat was years; Company the Hat building and had been five premises, of the responsible for maintenance was piece the fall regardless lease; terms of and that Company’s Hat and not terra cotta-was due failure and, therefore, the Invest- lease, date due conditions rights directing Company’s prejudiced were the instruction ment Company. giving Hat It is contended that for the verdict n liability Company’s affected the Investment directly the instruction rights Company defendant Hat its of contribution from plaintiff, lease; Company under the- that the instruction the Hat destroyed extinguished its Company defense effect, anyone was; instruction, if and that directed a liable, says Plaintiff against the Investment verdict complain way since the instruction in affected Company may no defenses, any it Company prove. could if evidence, that, plaintiff, we have held the facts in Under and, for defendant Hat directing Company verdict court erred case, this think error we it was also circumstances under Company defendant Investment defendant Invest- by the action Company’s rights prejudiced were trial ment defendants, rights their in certain re- court. As between condition, wall fixed- spects terms of the lease. were made, were at the the lease was issue. The facts time liable, against either, or. find could find both could charged joint liability. and several There petition both not liable. for a defense the Investment was basis evidence Company-was that the Hat for the solely falling piece liable of terra cotta the wall defendant Hat under duty, maintain, is, evidence was such an inference that the fall of the solely of terra cotta drawn was due subsequent to a defective condition which arose unsafe the- letting, in the' while and control *12 Company, and for which condition the Company Investment responsible. error, .therefore, not It was Com pany verdict for the Hat are direct and we not called to decide whether would have been error if only case for joint liability had been made the defendants. When the .court- .the Hat directed verdict for .the Company’s terra solely defense that cotta fell because of of. effectively cut off. The rule is that a Hat. complain given can of instructions the request of a codefendant question plaintiff. affects of his liability .to People’s Co., 898; Motorbus Mo. [Story (2d) Nafziger al., Barr Baking et Co. 328 Mo. 41 W. S. 559, 563; al., Gabelman v. Bolt et 539, 80 (2d) 171, Mo. W. S. Nevins (Mo. et al. App.), 139 (2d) 1109, S. v. Solomon W. quashal of opinion certiorari denied, State ex Hughes, rel. Nevins v. 149 S. (2d)W. 836.] right cases dealing with the aof complain defendant to of an given instruction a codefendant which lia- affects defendant’s bility fully are reviewed the case of State rel. Nevins .ex v. Hughes, supra. reached, conclusions we have
From is unnecessary to con- assignments sider the other judgment error. de- each fendant is reversed and the cause proceedings for further remanded opinion. inconsistnt with Hyde this and Bradley, GG., concur. PER opinion foregoing C., CURIAM: The is adopted Dalton, opinion as the judges the court. All the concur.