Quay v. Lucas

• Decision Date: 23 February 1887
• Citation: 25 Mo.App. 4
• Parties: BELLA QUAY, Respondent, v. JAMES D. LUCAS, Appellant.
• Court: Missouri Court of Appeals

25 Mo.App. 4

BELLA QUAY, Respondent, v. JAMES D. LUCAS, Appellant.

Court of Appeals of Missouri, St. Louis.

February 23, 1887

APPEAL from the St. Louis Circuit Court, GEORGE W. LUBKE, Judge.

Reversed.

W. H CLOPTON, for the appellant: A landlord is not liable to tenant for the defective condition of rented premises unless the landlord expressly agreed to make the repairs before the tenancy began. Rogan v. Dockery, 23 Mo.App. 313; Howard v. Doolittle, 3 Duer 464; Leavitt v Fletcher, 10 Allen 121; Sheets v. Selden, 7 Wall. (U. S.) 423; Libby v. Talford, 48 Me. 316; Moore v. Webber, 71 Pa.St. 429. If the tenant chooses to use the part of the premises out of repair, the landlord is not liable for any injury resulting from it being out of repair. Thomp. on Neg. 324. The tenant assumes the risk. Tayl. on L. & T., sect. 175 a; Brewster v. De Fremery, 33 Cal. 341; Sherwood v Scanlan, 2 Bosw. 127; Doupi v. Genin, 1 Sweeny 25. A subtenant is under the same restriction. O'Brien v. Capwell, 59 Barb. 497; Robbins v. Jones, 15 C. B. (N. S.) 221; Nelson v. Led. Brewery, 2 L. R. C. P. Div. 311; 1 Wash. Real Prop. (4 Ed.) ch. 10, sect. 6; Bullard v. Butler, 30 Me. 94. His action, if any, is against the tenant under whom he is, and not against the landlord. Bendick v. Cheadle, 26 Ohio St. 393; Alton v. Railroad, 19 C. B. (N. S.) 238; Clancey v. Byrne, 56 N.Y. 136; White v. Montgomery, 58 Ga. 204; Davidson v. Nichols, 11 Allen 519; Winterbottom v. Wright, 10 M. & W. 109.

JULIAN LAUGHLIN, M. F. TAYLOR, and ROBERT L. MCLARAN, for the respondent: If the landlord make a contract to put the premises in good condition, and keep them in repair during the tenancy, and failing to do so the tenant suffers injury, the landlord is liable. Vai v. Wells, 17 Mo. 232; Deutsch v. Abeles, 15 Mo.App. 398; Padburg v. Kennerly, 16 Mo.App. 556; Griffiths v. Lewis, 17 Mo.App. 605; Rogan v. Dockery, 23 Mo.App. 313. And is likewise liable to a sub-tenant. Peterson v. Smart, 70 Mo. 36; Joffe v. Hortran, 56 Mo. 398; O'Brien v. Capwell, 59 Barb. 497.

OPINION

ROMBAUER J.

The plaintiff rented a room as a lodger from one Mrs. Bondurant, the lessee of the premises in question, two days before the date of the accident complained of. On the seventeenth of September, 1885, the plaintiff, while lawfully on the premises, walked into a privy thereon, and owing to the defective condition of its floor, without negligence on her part, fell into the privy vault, sustaining serious injuries. She thereupon instituted this action against the defendant, who is the owner and lessor of the premises, and recovered judgment.

The petition states that the defendant owner agreed with Mrs. Bondurant, to keep the premises and appurtenances in a safe condition, and to do the necessary repairs thereof, and that he failed and refused to keep said premises in a safe condition, but wrongfully and negligently permitted the flooring of the privy vault on said premises to become weak and insecure, so that the same was, on the seventeenth day of September, 1885, and for a long time prior thereto, in a dangerous condition; hence the injury for which the plaintiff sues.

There was evidence tending to show that the defendant, by contract with Mrs. Bondurant, the lessee, was under a legal obligation to keep the premises in repair; also evidence that the attention of the defendant's agent had been called to the defective condition of the privy a sufficient length of time prior to the accident to have enabled him to make the necessary repairs. The evidence further tended to show that the privy floor became extra dangerous, on the evening of the accident, and but a short time preceding it, when a very heavy person employed at the house walked into the privy and some of the sleepers gave way, causing the floor to sink. Mrs. Bondurant was advised of this fact at once, and notified some of her boarders, but seemed to have no opportunity to notify the plaintiff, before the accident to the plaintiff happened.

The defendant filed a motion in arrest of judgment, on the ground that the petition failed to state a cause of action, and a motion for new trial, on the ground, among others, that the verdict was against the evidence, and, both motions being overruled, has appealed to this court. This raises the question whether a lodger, subtenant, or sub-lessee, can maintain an action against the landlord lessor, for injuries caused to him by the fact that the premises were out of repair, upon showing a covenant to repair, by the lessor.

That one who is no party to a contract of letting, can not sue in respect of a breach of duty, arising out of the contract, in an action of tort, was decided under circumstances similar to the present in Robbins v. Jones (15 C. P. [N. S.] 238), and the general rule, whether applicable to contracts of letting, or other contracts, was very fully discussed in Alton v. Railroad (19 C. B. [N. S.] 213), where all the judges seriatim in exhaustive opinions decided that the party to the contract alone could maintain the action. So, in Blakeman v. Railroad (8 El. & Bl. 1053, 1054), it was held that such an action was not maintainable, except by the party to the contract, and the case was distinguished from Levy v. Langridge (4 M. & W. 437), in which the son recovered for injuries caused by the explosion of a gun, in an action against the gunsmith, although the gun had been bought by his father, on two grounds, namely: first, that the gun was bought for the use of the son, who could not make the bargain himself, but was really and substantially the person contracting; and, next, that it was a case of fraud, and wilful deceit, the defendant having knowingly made a false warranty as to the gun. It may be added, that the court of exchequer, as well as the appellate court, upheld the recovery in the last named case as resting on fraud, and not on contract, and that that is the view taken of the case in Davidson v. Nichols (11 Allen 519), where the rule is re-stated that no one but the vendee can sue in tort for injuries resulting from the contract of sale. See, also, as illustrating the general rule, Winterbottom v. Wright (10 M. & W. 109).

We have carefully examined the decisions in this country, and find them in harmony with the rule as above stated. No decided case can be found, where, in an action of tort founded upon the violation of a contract, the lessor was held liable to a person injured, where such a party was not a person to the contract....