T. L. Horn Trunk Co. v. Delano

CAULFIELD, J.

(after stating the facts). — I. We have no doubt that had the defendant acted herein as an individual owner or landlord she would have *406 been under an implied obligation to use reasonable dilig’ence to keep tbe tank in a reasonably safe condition, for this tank was not leased with the respective buildings, but tbe defendant as lessor reserved it under ber control for use in common by all of tbe tenants. [McGinley v. Alliance Trust Co., 168 Mo. 257 , 66 S. W. 153 .] But in support of their assignment of error based on tbe court’s refusal to give a demurrer to tbe evidence, ber counsel contend that tbe defend- ■ ant, not being tbe legal owner of tbe premises leased, but simply having charge thereof under order of tbe probate court and there being no order directing ber to make repairs, she was without authority to do so, and being without such authority no legal duty was imposed upon ber to make them. In tbe opinion of tbe writer there is much to be said in- favor of this contention; but tbe majority of tbe court are of tbe opinion that having gone into tbe possession and control of tbe premises under Section 1391, Revised Statutes 1909, and having ‘reserved such possession and control as to the tank, thereupon while such order continued she bad tbe exclusive right by virtue of ber estate to enter upon such tank and repair tbe same, and if safety required such repairs to be made it was ber duty to make them, even without an order of tbe probate court, it being tbe opinion of tbe majority that section 1401 of tbe Revised Statutes 1909, as construed by our Supreme Court, merely forbids ber taking credit in ber account for repairs not ordered and does not relieve ber from any duty incident to tbe right to control. In support of this see Donohue v. Kendall, 50 N. Y. Sup. Ct. Rep. 386; Belvins Exrs. v. French, 84 Va. 81 ; also, McGrinley v. Alliance Trust Co., supra. While this last case does not deal with an executor or administrator, it suggests that tbe duty to repair is incident to tbe exclusive right of entry and control.

*407 II. But it appears that the judgment was rendered upon the theory that the estate was liable for the negligence of the administratrix. The judgment is against the estate. This was error and must lead to the reversal of the judgment. Augusta N. Delano, individually, and not the estate was liable for her negligence. [11 Am. & Eng. Ency. Law (2 Ed.), p. 942; Richardson v. Palmer et al., 24 Mo. App. 480 ; Donohue v. Kendall, 50 N. Y. Sup. Ct. Rep. 386; Belvins Exrs. v. French, 84 Va. 81 .] Nor are we persuaded that the effect of this error may be overcome by a mere correction of the judgment. While the law is no respecter of persons, it does recognize that “a litigant has a right to his or her own personality and the opposing party has no right to have the consideration of his claim influenced or measured by any other standard, so far as individuality is concerned, than that afforded by the .party of whom he complains. He cannot ask unliquidated damages of a good man who may have injured him and then substitute a bad man at the trial.” [Gore v. Brockman, 138 Mo. App. 231 , 119 S. W. 1082 ; Trent v. Printing Co., 141 Mo. App. 437 , 126 S. W. 238 .]

While the language of the petition referring to the defendant as administratrix might have been and on retrial may he regarded and treated 8*8 merely descriptio personae or as being used to set forth defendant’s relation to and consequent individual duty respecting the property mentioned therein, we are not satisfied that it was so regarded or treated or that the trial proceeded upon that theory. The judgment entered, when taken in connection with the pleadings, persuades us that the trial proceeded as if the estate and not the defendant personally was the real defend-ant} and to now enter judgment against the administratrix individually without a retrial would he to bestow upon the plaintiff the unjust advantage of having *408 judgment against one person upon a trial against another.

The judgment is reversed and the cause remanded.

Reynolds, P. J., and Nortoni, J., concur.