Griffith v. LeWis

• Decision Date: 05 May 1885
• Citation: 17 Mo.App. 605
• Parties: T. J. P. GRIFFITH ET AL., Plaintiffs in Error, v. M. D. LEWIS, Administrator, Defendant in Error.
• Court: Missouri Court of Appeals

17 Mo.App. 605

T. J. P. GRIFFITH ET AL., Plaintiffs in Error,

v.M. D. LEWIS, Administrator, Defendant in Error.

St. Louis Court of Appeals, Missouri.

May 5, 1885.

ERROR to the St. Louis Circuit Court, LUBKE, J.

Reversed and remanded.

DANIEL MCGOWAN and A. R. TAYLOR, for the plaintiff in error: This tenancy from the deceased owner was from month to month, not being in writing after 1881, and being in this city.--Revised Statutes, sect. 3078. The holding over after the end of the written lease of 1881, was only a tenancy from month to month.-- Hammond v. Douglass, 50 Mo. 444. If premises were in a defective condition at the time of making lease, and injury ensued therefrom to plaintiffs, they could hold at their election either lessor or lessee.--1 Thompson, Neg., 317, sect. 12, note 7, with authorities cited. As this tenancy was monthly after the year 1881, the lessor was liable for a nuisance existing upon each monthly renewal of lease.--1 Thompson, Neg., 319; Wood, Landlord and Tenant, 917,918. To suffer filthy water from a vault to percolate through the soil to the injury of an adjoining proprietor, where the owner of the property on which the nuisance exists has notice is actionable.-- Ball v. Nye, 99 Mass., 582.

EDWARD WHITE, for the defendant in error: In the absence of covenants, a tenant is bound to keep the rented premises in repair.-- Deutsch v. Abeles, 15 Mo. 398; Padberg v. Kennerly, 16 Mo. App. 556. And a nuisance arising from non-repair is the nuisance of the tenant.-- Vai v. Weld, 17 Mo. 232; Wood, Nuisances, 950; Taylor, L. & T. sect. 175, and cases cited supra.

THOMPSON, J., delivered the opinion of the court.

This was an action for damages for a nuisance. At the close of the plaintiff's testimony the court directed the jury that the plaintiff could not recover.

The substantial averments of the petition were that the plaintiff, Mrs. Griffith, was the owner of certain premises in the city of St. Louis; that the defendant's intestate, Mrs. Mulford, “was on or about the 15th day of February, 1880, and for a long time before and ever since till the time of her death, hereinafter mentioned, the owner and in possession of a lot of ground immediately adjoining and abutting against the above described premises; that on said lot of ground is erected a tenement house with a privy vault which is sunk at great depth in the ground; and that by old age and long usage, it became worn out, leaky, and dilapidated, defective and out of repair * * *; that defendant knowingly maintained the privy vault upon said lot in said condition, and wantonly and intentionally permitted it to remain full of water, excrement, and filth. That said tenement house, with the nuisance on said lot, was rented out, from time to time and from month to month, to tenants by said defendant” (meaning the defendant's intestate, Mrs. Mulford, and the defendant, J. E. Kaime, her agent as to whom the suit was subsequently dismissed). Then, after an averment touching the condemnation of the premises as a nuisance by the Board of Health under an ordinance of the city, the petition further avers “that, on or about the 15th day of June, 1882, and for a long time before and ever since, till about the 15th day of March, 1883, the foul water and filth of said privy vault as aforesaid, percolating and siping through the ground of said defendant and through the walls of the plaintiff's dwelling house and hotel and into the cellar and basement and ascending therein to the height of several feet, and thereby causing the walls of said house and hotel to be greatly weakened, split, and fractured and the floor of said basement and cellar to be rotted; that by reason of the unwholesome vapor arising from the foul and stagnant water in said cellar and basement and ascending in and around said premises, the health of the plaintiff's, of their family, and of the inmates of their house and hotel has been and is greatly impaired and injured and the business of said plaintiffs in consequence thereof has suffered great loss. Wherefore, by reason of said loss and injuries to plaintiffs they were and are damaged in the sum of two thousand dollars for which sum plaintiffs ask judgment.”

The answer of the defendants was a general denial.

According to the language of the bill of exceptions, the plaintiff gave evidence at the trial tending to prove:

1. “That the plaintiff, Teresa J. Griffith, was the owner as separate estate of the lot numbered 309, South Third Street, St. Louis, and the house thereon, and had owned, and with her said husband, occupied same since the year 1879, being the same premises mentioned in the petition.

2. That Ruth H. Mulford, deceased, was, on the 15th day of February, 1880, and prior thereto and up to the time of her death, January 19th, 1883, the owner of a lot of ground fronting on Myrtle Street and running southward to and abutting against the premises of the said Teresa J. Griffith.

3. That about the year 1880 there began to be a drainage underground from a privy vault on the said premises of Ruth H. Mulford, on to the premises of said Teresa J. Griffith, which underground drainage continued up to December, 1882, when said privy vault wasrepaired.

4. Plaintiff gave evidence showing positively that said premises of Ruth H. Mulford (the defendant's intestate) was occupied and controlled by a tenant continuously from the year 1879 until the death of said Ruth H. Mulford and up to the date of filing this suit; but there had never been but one written lease of the premises which was for a year, in the year 1881. Prior to that year and subsequent to that year, there had been no written lease or tenancy except oral, and the rent was payable monthly.

5. That plaintiff gave further testimony tending to show that in the year 1882, in March, plaintiffs located the point from whence the underground drainage emanated, at the privy vault on the said premises of Ruth H. Mulford, and thereupon immediately gave notice to J. E. Kaime & Bro., real estate estate agents having charge of the collection of the rents of the said premises for said Mulford, of the defective condition of said premises; and thereafter, in May, gave notice of the defective condition of said privy and that same was a nuisance, to the Board of Health of the city of St. Louis.

6. That in June, 1882, plaintiffs instituted an action for damages against Ruth H. Mulford before a justice of the peace on account of the maintaining of said defective privy vault, and the injury to plaintiff's property thereby; that said Ruth H. Mulford was served with process in said suit, but, without any trial of said suit, the same was dismissed.

7. That the cause of said underground drainage was the defective condition of the privy which had existed since 1880 and grew worse until December, 1882, when it was repaired--it being worse and doing plaintiff's premises serious injury in the spring and fall of 1882.

8. That plaintiff's house and the cellar thereunder were damaged by the filthy water and substances from the privy vault percolating through the earth into the walls of the basement, causing the walls of the house to crack, and to be permanently injured, and the premises of plaintiffs to be damaged in the sum of fifteen hundred dollars. That most of the damage occurred to the premises after June, 1882, and up to December, 1882, when said privy vault was repaired.”

The error complained of is that the court withdrew the case from the jury.

An analysis of the above statements of fact will make it clear that the plaintiff's evidence did not tend to show that the defendant's intestate had any notice of the existence of the nuisance until the month of June, 1882, for although it is alleged that notice was given to Kaime (the defendant's agent) in March, 1882, yet it does not appear in what respect Kaime was the agent of the defendant's intestate at that time, if at all, and it therefore did not appear that he was her agent to receive notice of the defective condition of her premises so as to charge her with liability therefor; and, of course, notice to the Board of Health was not notice to her. On the contrary, the bringing of the action before the justice in June, 1882, and the personal service of process upon her in such action was as far as the record shows, the first notice to her of the existence...