*1 701 faith and rea to indicate that the insurer has acted in bad without raising relying upon particular issue. It sonable cause “vexatiously”, 6040, Revised has been said as used Section Statutes probable reasonable cause. That 1939, means without statute should good intimidate a faith defense. never be invoked*to Aetna [Howard (2d) 360, 366; Co., 17, 350 Mo. 164 S. W. St. Clair v. Life Ins. Wash Fidelity Co., (2d) 85, 89 W. ington 88; National Ins. S. Stahl v. Assur. Co., (2d) 78, W. American National S. The trial 81.] denying justified penalties this case. court was judgment All should be affirmed. concur. follows Reinagel corpora Company, Herman v. Walnuts Residence G. (2d)

tion. 194 W. 229. City Appeals. April 22,

Kansas Court 1946. *2 appellant. Mandell, Popham, Popham, A. and Sam Cowgill (cid:127)<& G. *3 Johnson, Nelson E. R. R. Brewster, Breioster, R.. R. Jr., and T.R. Brewster, respondent. *4 SPERRY, J., personal by injury Reinagel, plain- is a Mr. suit This

tiff, against Company, Corporation, Walnuts a Residence defendant. $6,000 .judgment Plaintiff had a in the amount and of defendant appeals. operated large a apartment City and,

Defendant hotel in Kansas in and part tenants, connection therewith as a its it of service to its operated garage and a in maintained the rear At thereof. the time injuries complained of, plaintiff years received the and for seven by thereto, he prior a tenant defen- Croysdale, was Mrs. of employed park employer’s him to his dant, as her chaffeur. His duties it to and from the garage automobile in defendant’s and to drive garage to from time time. garage partially evidence effect that the is built

Plaintiff’s was the patio under apartment under the hotel but extends out therefrom a garden. entirely underground and a number is and while there are they very light. of small set in and admit little windows are “wells” driveways, long, It is about 175 feet from east and has two west, side, against wall, “North” and the known as ‘‘South.’’ On the north stalls, eight is a row of or ten each automobiles are into of which against a of backed island. South of this row cars another concrete island, length concrete known as center island which extends the the building, entrance, of near which point the from a the south of is located on the north side and near the wall. This center island east concrete, rising is of eight some six or inches level of the from the floor, wide, angle about six feet the an declining its sides floor at not perpendicular. that, parked, are backed Cars into stalls so when they are back to back. The north two of drive runs between rows facing -other; cars each south drive runs of and across south parked along the front of the ears south island. side of the center wall, facing parked along There is a also row cars the south entrance, corner, south garage drive. At near the north-east was located a chauffeurs’ room. casualty Croysdale

At the time parked occurred the car was regularly accommodation, assigned stall its located on against backed, south side center island which it was facing the south drive. No natural ever came in contact with Croysdale rear space lighting system car. The garage lights consisted of ceiling, drop reflector and of lights hanging illand, over center of the center one of which was in Croysdale by the rear of the ear. put It was on and off pulling a cord. pull In necessary order to the cord it was to stand on the island. system lighting by was controlled master switches located room, plaintiff chauffeurs’ which plain- had no access. When by tiff employed Croysdale was first the lights Mrs. in the on; years kept were but for five immediately-prior accident garage lights kept by had been off excepting turned when one employees of defendant’s in the chauffeurs’ room where the switches were located. Plaintiff himself could turn on drop if the current not cut off that circuit. prohibited Plaintiff *5 operating from the switches but he could ask an attendant to do so. Frequently, however, there would be no in the one chauffeurs’ room perform service, regular that garage employees to being- not present out garage performance but of the in of other duties. lights garage Without electric was dark. Chauffeurs were headlights driving to turn on their when vainly pro- in. Plaintiff had garage. adequate lighting of any sufficient, or the lack of tested it always turned servants light on, defendant’s drop If he left'the for car. burning he returned it not when off that be so would entrance, on a regular car garage, at entered Plaintiff along west, Croysdale’s He walked get car. Sunday morning, to Mrs. All were off. lights opposite the car. point to a drive the north dark drive, pitch it was along but walked see, as he He could the island. not parked and he could see car where the was the stall He right on the island. placed foot the stall and his approached- He step to solidly his left foot planted and lifted thought his foot was right slipped light. foot drop His -upon as reach the island so to thereby causing injuries. down, his and threw him of, a directed moved for plaintiff’s evidence defendant At the-close no evidence. Defendant offered verdict, overruled. which motion was plain- motion, have been because urged that the should sustained is any actionable prove guilty tiff’s evidence failed to defendant duty. breach of theory negli- that

Plaintiff submitted case defendant gent garage space in rear the car failing .because dangerous an hazard inherently and constituted undue lighted. unless tacitly contends, defendant’s agrees,

Plaintiff and defendant that by duty plaintiff governed applicable law landlord and employee tenant, Plaintiff, being occupies tenant. an of defendant’s Croysdale occupied. relationship that Mrs. the same to defendant 101, Railway Exchange (2d)W. l. c. [Darlington Bldg., v. 183 S. 105.] It is a premises well settled rule law where are let several that tenants, case, as was done in tenants use certain this and where said portions common, halls, stairways, entranceways, thereof in such as like, portions and the premises such are held to have been by reserved the landlord for the of'the and he common use tenants is in care, control mantenance, thereof and is liable for their safety. reasonable has Where landlord undertaken to said premises must properly light then he exercise reasonable them care any by liable injury negligence regard. and is his caused in this Railway Exchange 101, [Daelington Bldg., (2d) v. W. c. 183 S. l. 105, supra; v. Kellogg, (2d) 201; Kellogg, Barber 111 W. v. Barber W. (2d) 100, 123 S. l. c. 102.] required, agreement statute, landlord is not absent to fur lights halls, stairways, entranceways, passages

nish used by tenants, common a number premises inherently unless are dangerous by reason of construction. Shearman and Redfield, Law of Negligence, v. Jones, 677, 1941 Ed. 1809. Lambert Mo. l. c. (2d) 760; Darlington 752, Railway 690. 98 S. W. c. Exchange l. *6 if 105; there is 101, l. c. but Building, supra, (2dJ 183 W. lights. required such to furnish a condition the landlord is required although not duty lighting, If a of' landlord assumes the care and duty with reasonable do, perform so to he is bound the to may, failing to do. He prudence negligence in so be liable for his Kel- however, lighting notice.. discontinue on reasonable [Barber Here, is to the effect logg, (2d) 111 S. c. the evidence W. 1. 204.] duty lighting performed and that defendant the of the assumed years duty plaintiff’s employment, but during that first tivo thereof, five discontinued, plaintiff this some service was knew years before the accident occurred. tending prove

There to that the is no evidence in the case construc- stalling garage, tion of this and the of cars with reference to island obtaining generally garages different in this com- from that munity, inherently or that it an unusual hazard or constituted , dangerous. in- garage, constructed, We cannot hold that as herently dangerous.

However, according drop a evidence, defendant maintained light in Croysdale rear of the car. A fair inference drawn from to be plaintiff’s light guide evidence is that the in,order was maintained the automobile get into the allow driver stall into to take testimony the car out. That is the effect of his on stallj point, The plaintiff evidence further discloses that when was first employed, years and .for thereafter, required two defendant drop light years, to be on at all times but some that, prior five accident, required it light extinguished to be when plaintiff was not there. employees Defendant’s pull would the cord extinguish light, always and it was plaintiff out when would come after the (cid:127) car. Having duty furnishing assumed'the bulb to be turned by plaintiff on purpose for the of getting into the stall in order to get the out, car may defendant be liable for negligently failing to provide a pelled to turning method of plaintiff without being com- enter on island in the dark. We do not hold that negligence evidence establishes as law; a matter of jury but a /might ordinary well find that care provide defendant to some more . convenient an dless hazardous turning method of light, on the if provided the method was hazardous, and that failure so to do constituted negligence. v. Kellogg, 123 S. (2d)W. 1. [Barber cl theory This negligence was not advanced*in 102.] the trial court. judgment The should be reversed and the cause remanded. Boyer, G., concurs.

PER foregoing CURIAM:—The opinion of Sperry, C., is adopted opinion as the court. judgment is reversed and Bland, cause Dew, remanded. J., J., P. concur; Gave, J., dissents in separate part; opinion concurs in result. part ; in result. concurs J., dissents

Cave, as matter proves, case agree I that the evidence this *7 'cannot inherently dangerous. constructed, not is law, that -as garage, the garage which the part the of that to the effect Plaintiff’s evidence is dark”, use, “pitch right was required use, and had he of section on, that in that and lights the electric were not when height, 6 8 inches from to abrupt garage there was an elevation be a it would my opinion that It is as “the referred to island.” would located, elvation, so abrupt question jury whether this for the require as would condition such inherently dangerous constitute an expose the obstruction. provide defendant to sufficient is well stated in this case general rule to the facts applicable The author declares: p. 576, 701, Am. Jur., 32 Sec. where ‘ liability for safe condition of a landlord of common-law hallways used in in, .premises to, and approaches and the stairs require keep him to tenants, ordinarily not by different does common ordinarily is ordinary stairways and hence he not lighter, halls and unlighted by condition of injuries for reason of the liable received if a -However, the construction portion premises. of this stairway of ord'kiary times, require light, even in as to is such artificial stairway safe, hall the landlord in order to make the use and of lighted. may negligence failing keep it Like- be held liable for duty keeping of a hall wise, or where landlord assumes stairway injuries unlighted to the lighted, personal liable due he is negli- hall, if is his condition of the that condition aseribedable to gence.” (Italics supplied.) 677, Jones, Supreme v. 339 Court Lampert

In Mo. discussed at duty lighted length keep passageways of a landlord to common employees, of and for the benefit tenants visitors of held that the (690) in that liable because : landlord case not any “Second: There was no evidence sufficient to show condition . inherently dangerous arrangement in the construction or of this stairway, unguarded no' and there was well or hole, elevator other trap, dangerous duty therein obstruction from which a stairway might arise he (Italics whether assumed it or not.” ours.) (cid:127) my opinion present that the in the evidence ease makes an issue fact .whether the condition of the floor was an inherently dangerotis arrangement, because dangerous there was a those, immediately obstruction, by darkness, path hidden in the- expected part were a-nd to use that who of the garage. plaintiff knew of The fact that such condition would not be question arrangement decisive of the whether the was inherently knowledge dangerous. only should be Such considered in connection contributory negligence question with the and the assumption risk.' his No. 1 submits plaintiff’s instruction

I clo not understand that arrangement, without theory ease on the that construction rather submits condition, but inherently lights, dangerous an created duty furnish- theory had assumed it on the that the defendant Therefore, his do so. ing necessary negligently failed to lights and it was my theory, because affirmed, judgment even could not be reached final result jury. I concur to the not so submitted majority opinion. in the Valley Sharp Mississippi Company,

Martha Warmack Trust N. Corporation, a the Will of Robert Trustees under as Warmack Warmack, Deceased, Appellants, Annie Laurie Sharp minor, Crawford, Crawford, and Martha Appellant, by Respondent. guardian ad Gilmore, litem, L. John *8 (2d)W. 919. Appeals. Opinion 18, 1946. Louis filed June

St. Court