Graff v. Lemp Brewing Co.

• Decision Date: 06 April 1908
• Citation: 109 S.W. 1044,130 Mo.App. 618
• Parties: JOHN GRAFF, Appellant, v. LEMP BREWING COMPANY, Respondent
• Court: Kansas Court of Appeals

109 S.W. 1044

130 Mo.App. 618

JOHN GRAFF, Appellant, v. LEMP BREWING COMPANY, Respondent

Court of Appeals of Missouri, Kansas City

April 6, 1908

Appeal from Jackson Circuit Court.--Hon. Henry L. McCune, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

John I Williamson for appellant.

When a landlord covenants with a tenant to make repairs but fails to do so although repeatedly notified, but when notified repeatedly promises to make repairs but without doing so, and the tenant is injured by reason of the failure of the landlord to repair, the tenant is entitled to recover damages for the injuries sustained by him. Stoetzle v Swearingen, 90 Mo.App. 588; Roberts v. Cottey, 100 Mo.App. 500; Mancuso v. Kansas City, 74 Mo.App 138; Ward v. Fagan, 101 Mo. 669; Ploen v. Staff, 9 Mo.App. 309; Hamilton v. Feary, 8 Ind.App. 615, 35 N.E. 48, 52 Am. State 485; Quay v. Lucas, 25 Mo.App. 4; Little v. Macadaras, 29 Mo.App. 332; Sontag v. O'Hare, 73 Ill.App. 432; U. B. Man'fg Co. v. Lindsey, 10 Ill.App. 583; Gridley v. Bloomington, 68 Ill. 47; Boyce v. Talleman, 183 Ill. 115, 55 N.E. 703; Rauth v. Davenport, 60 Hun (N.Y.) 70; Moore v. Stoeljes, 69 F. 518; 1 Tiffany on Real Property, p. 98; Thompson v. Clemens, 96 Maryland, 196; Jones on Landlord and Tenant, p. 677.

F. V. Kander, for respondent.

(1) In appellant's brief stating his point, he wholly overlooks the distinction between an action for such damages (1) as proximately result from the breach of the contract, and were within the contemplation of the parties when the contract was entered into; and (2) damages for personal injuries received when the lessor failed to make repairs which he had agreed to do. Or, to put it differently, before the lessor can be held liable for such injuries as appellant complains of, it must appear that the parties had such injuries in contemplation when the contract was made, and that the lessor expressly agreed that he would indemnify the lessee against any injury he might receive because of defects in the floor. No such agreement is alleged. Hicks v. Railroad, 46 Mo.App. 304; Eyre v. Jordan, 3 Mo. 424, 33 Am. St. 546 and notes; Davis v. Smith, 66 L. R. A. 478, 26 R. I. 129; Tuttle v. Gilbert, 145 Mass. 169; 60 L. R. A. 580; Thompson v. Clemens, 96 Md. 196; 18 Am. & Eng. Enc. Law (2 Ed.), p. 321; Hamilton v. Feary, 52 Am. St. 492, and notes; 62 Central Law Jour., 44-45, citing numerous authorities; Davis v. Smith, 66 L. R. A. 478; Hamilton v. Feary, 52 Am. St. 485, and notes; Eyre v. Jamison, 111 Mo. 424, 33 Am. St. 546, and notes; Franklin v. Brown, 16 Am. St. 744, 118 N.Y. 110; Cowen v. Sunderland, 1 Am. St. 469, and note, 145 Mass. 363. (2) As already mentioned, the lessor would not be liable for special or consequential damages under the facts pleaded, because appellant has failed to reduce or moderate the damages by making the repairs himself and charging them to the lessor. The doctrine of avoidable consequences applies in full force to such a case as this. Hamilton v. Feary, 52 Am. St. Rep. 494; Trust Co. v. Stewart, 115 Mo. 236; Coal Co. v. Brick Co., 66 Mo.App. 296; Hicks v. Railroad, 46 Mo.App. 304; Lawrence v. Porter, 63 F. 62. (3) Moreover, the petition itself shows that appellant was guilty of such contributory negligence as would alone defeat recovery. He admits full knowledge of the dangerous condition of the floor at the very inception of the contract. It was not a latent defect. Jamison v. Continental, etc., Co., 104 Mo.App. 313; Dean v. St. Louis, etc., Co., 106 Mo.App. 180.

OPINION

JOHNSON, J.

--Action by a tenant against his landlord to recover damages for personal injuries alleged to have been caused by the negligent failure of the landlord to repair. It is alleged in the petition that defendant, the lessee of a business house in Kansas City, sublet the storeroom on the first floor to plaintiff for use as a dramshop; "that at said time the floor of said storeroom was broken and decayed in various places, and at the places hereinafter mentioned, and at the time plaintiff rented said storeroom, and as part of the contract of renting, and as part of the consideration for the payment by this plaintiff to defendant of said sum per month, defendant promised and agreed with plaintiff that it would put said storeroom in a good state of repair and in particular would repair said hereinafter mentioned broken and decayed places in said floor: That relying upon said agreement and contract on the part of defendant, plaintiff took possession of said storeroom on or about the 10th day of April, 1905, under said contract, and thereafter remained in possession thereof at all times hereinafter mentioned and duly fulfilled and performed all the conditions of said contract on his part: That defendant negligently and carelessly failed to repair said decayed and broken places in said floor though often requested by plaintiff so to do, but whenever the matter was brought to defendant's attention by plaintiff, defendant promised and agreed to make said repairs immediately and to put the same in a fit and proper condition for use and for this reason, plaintiff, relying upon said promises of defendant, did not make repairs himself. That defendant at all times herein mentioned had notice of the existence, character and extent of said defects in said floor and had also ample time and opportunity to repair same after notice had and before plaintiff was injured as hereinafter stated. That on or about the 24th day of May, 1905, while plaintiff was engaged in the discharge of his duties in his business in said storeroom and in the exercise of due care and caution on his part, was passing over a portion of said floor, the same gave way under the weight of plaintiff on account of the broken, defective and dangerous condition thereof, and plaintiff was thereby thrown violently to the floor and his leg was thrust violently through the broken portion thereof." Then follow a statement of the injuries inflicted and a prayer for relief. Defendant demurred to the petition on the ground that it failed to state facts sufficient to constitute a cause of action. The demurrer was sustained and, plaintiff refusing to plead further, judgment was entered in favor of defendant. Plaintiff appealed.

As between landlord and tenant, the rule is well settled that in the absence of an express agreement, the landlord is under no obligation to repair defects in the premises existing at the time of the letting. A tenant takes the property in the condition in which he finds it and cannot require the landlord to make it more habitable. This rule does not obtain in cases where, in the letting, the landlord is guilty of acts of misfeasance by which the tenant is damaged, but as the facts in the petition do not present the case as one falling within the exception, we shall not make it the subject of discussion here. A concise statement of the rule is found in the following quotation from the opinion of this court in Roberts v. Cottey, 100 Mo.App. 500, 74 S.W. 886: "The law is well settled in this jurisdiction to the effect that in the absence of a covenant the landlord is under no obligations to repair the premises during the course of the tenancy, nor is he liable in damages to his tenant for injuries resulting to him--the tenant--from the failure to repair the leased premises. In the absence of contractual obligations the landlord as to his tenant is only liable for acts of misfeasance and not of nonfeasance."

The facts before us show that defendant, with knowledge of the existence of a defective floor, agreed as a part of the contract for the renting of the premises to make suitable repairs and that when the injury occurred, a sufficient time had elapsed for the performance of this covenant. In such state of case, the rule we have just considered is without application and we pass to the solution of the questions relating to the nature and extent of the obligation assumed by defendant under the covenant to repair and of the liability he incurred by failing to perform that covenant.

Should we be required to treat the action only as one arising ex contractu, i. e., founded on a breach of the contract to repair within a reasonable time, we would be compelled by the great weight of authority to hold defendant free from liability for personal...