Dailey v. Vogl

• Decision Date: 15 February 1915
• Docket Number: No. 11166.,11166.
• Citation: 187 Mo. App. 261,173 S.W. 707
• Parties: DAILEY v. VOGL.
• Court: Missouri Court of Appeals

173 S.W. 707

187 Mo. A. 261

DAILEY v. VOGL.

No. 11166.

Kansas City Court of Appeals. Missouri.

February 15, 1915.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Addie Dailey against George Vogl. From a judgment for plaintiff, defendant appeals. Reversed.

Battle McArdle, of Kansas City, for appellant. Botsford, Deatherage & Creason, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff was defendant's tenant in one of his dwelling houses, and claims that she suffered personal injury on the premises by falling on one of the board walks in the yard, which he had promised to repair. She brought this action for damages, and recovered judgment in the circuit court.

The evidence in plaintiff's behalf tended to prove that her husband rented the house from defendant, but while they were occupying it they became estranged and separated, and that, in consideration of defendant's promise to repair the walk, she agreed to remain as his tenant at the rental her husband had been paying; that he failed to repair the walk, although frequently reminded and requested to do so; that finally she broke through a defective board, and fell, whereby she was injured.

If one merely hires another's premises, there being no fraud or deception, and goes into the exclusive possession, he takes them caveat emptor without warranty. The rent he agrees to pay is supposed to be rated according to the kind of habitation he gets. If there is an agreement that the landlord will repair the premises, and he breaches the contract, he is liable on the contract to the tenant in damages. But, in the absence of a contract, he is under no obligation to repair, and therefore is not liable in tort for negligence. This has been the rule in this state, beginning at an early day and continuing to the present time. Vai v. Weld, 17 Mo. 232; Morse v. Maddox, 17 Mo. 569; Peterson v. Smart, 70 Mo. 34; Ward v. Fagin, 101 Mo. 669, 14 S. W. 738, 10 L. R. A. 147, 20 Am. St. Rep. 650; Glenn v. Hill, 210 Mo. 291, 109 S. W. 27, 16 L. R. A. (N. S.) 699; Andrus v. Bradley Alderson Co., 117 Mo. App. 322, 325, 93 S. W. 872; Coats v. Meriwether, 144 Mo. App. 89, 91, 129 S. W. 468; Roberts v. Cottey, 100 Mo. App. 500, 74 S. W. 886.

It is supported by the highest authority in other jurisdictions. Tuttle v. Gilbert Mfg. Co., 145 Mass. 169, 13 N. E. 465; Davis v. Smith, 26 R. I. 129, 58 Atl. 630, 66 L. R. A. 478, 106 Am. St. Rep. 691, 3 Ann. Cas. 832; Dustin v. Curtis, 74 N. H. 266, 67 Atl. 220, 11 L. R. A. (N. S.) 504, 13 Ann. Cas. 169; Stelz v. Van Dusen, 93 App. Div. 358, 87 N. Y. Supp. 716. These cases are cited by our Supreme Court in Glenn v. Hill, supra. But there are a great number of others, as will be seen by reference to text-books and encyclopedias. 1 Taylor's Landlord and Tenant, §§ 327, 328; 1 McAdam, Landlord & Ten. (4th Ed.) 475; 18 Am. & Eng. Ency. Law (2d Ed.) 231, 234; 24 Cyc. 1115.

If he contracts to make repairs, and negligently fails to do so, he is liable in damages for breaching the contract; but this does not include liability and damages for personal injury received by reason of such unrepaired defects, for they are too remote. Authorities supra. He is not liable in tort for negligence. The sum of his liability is governed by his contract; for he only becomes liable by reason of his contract; therefore the contract determines its extent. Only being liable by reason of his contract, there is no duty resting upon him, except under the contract. His relation to the tenant is entirely contractual, and therefore an action of tort for negligence has nothing to rest upon.

But, while conceding that there must be a duty owing and unperformed to sustain an action of tort for negligence, it has been said that the breach of a contract is a nonperformance of a duty, and in that way an action in tort for negligence may be made out. Cases are relied upon in support of this which we think are not applicable. It seems altogether illogical to admit that an action of tort for negligence cannot be sustained because the landlord owes no duty to repair, and that in an action on the contract damages for tort, as in personal injuries, are too remote to be allowed; yet, by the process of making a duty out of the contract and showing it was unperformed, you have perfected an action of tort for negligence, for which you may recover damages for personal injury. But we will consider this after taking up cases decided by this court and the St. Louis Court of Appeals, some cited by one and some by the other party to this controversy.

The case of Korach v. Loeffel, 168 Mo. App. 414, 151 S. W. 790, is unlike this in that it did not involve a lease in which there was an agreement to repair. But in the discussion of the case Judge Reynolds recognizes and states the law as declared by the Supreme Court in Glenn v. Hill. In the latter part of the opinion the case is treated, by way of concession to the plaintiff, from the standpoint of an agreement to repair, and the law announced, as in Glenn v. Hill, that a lessor's covenant to repair will not support an action for a personal injury resulting from a breach of the covenant.

The St. Louis Court of Appeals also decided Collins v. Fillingham, 129 Mo. App. 340, 108 S. W. 616. That case is likewise unlike the one we are considering. There were two premises of the landlord with an upper porch or balcony; one was one-story and the other two-story, the latter occupied by the plaintiff. The porch extended over the roof of the one-story building, and was in common to both. It was in possession of the landlord, with right of use by the tenant, and belongs to that class of cases of which McGinley v. Alliance Trust Co., 168 Mo. 257, 66 S. W. 153, 56 L. R. A. 334, Karp v. Barton, 164 Mo. App. 389, 144 S. W. 1111, Andrus v. Bradley-Alderson Co., 117 Mo. App. 322, 93 S. W. 872, Lang v. Hill, 157 Mo. App. 685, 138 S. W. 698, and Coats v. Meriwether, 144 Mo. App. 89, 129 S. W. 468, are types.

But this court ruled in Graff v. Brewing Co., 130 Mo. App. 618, 109 S. W. 1044, and repeated it, in same case, 145 Mo. App. 364, 129 S. W. 1005, that a simple agreement to repair created a duty to repair, and then, drawing upon the law that permits an action in tort for violated duty, held that an action could be maintained for personal injury by a tenant against his landlord who had breached his contract. The opinion at the first hearing shows that we relied much on Thompson v. Clemens, 96 Md. 196, 53 Atl. 919, 60 L. R. A. 580. In that case, notwithstanding a promise to repair, the trial court decided there was no cause of action for personal injury, and this was affirmed by the Maryland Court of Appeals. But, in the course of the opinion, the court, after stating plaintiff's claim of right to sue says (96 Md. 205, 53 Atl. 919, 60 L. R. A. 580) that the plaintiff conceded damages for personal injury were not recoverable in an action ex contractu on the contract to repair, but claimed that an action on the case would lie, founded on the negligent failure of the landlord to perform a duty which he had assumed by the contract. Then, coming to express its own opinion, the court (96 Md. 207, 53 Atl. 921, 60 L. R. A. 580) said:

"We have no doubt, however, that no action, either in contract or in tort, by a tenant, or one of his family, against a landlord to recover damages for personal injuries, should be sustained merely because the latter has been guilty of a breach of contract to make necessary repairs in the premises demised. It is not denied by counsel for the appellant that such damages are too remote, and not in contemplation of the parties, to be recovered in an action ex contractu, and to permit a recovery of such damages based on the contract simply because it is in form an action of tort would be making a distinction that could not be justified by reason or authority. There must be something more than a mere failure on the part of the landlord to make the repairs he has agreed to make." (Italics the court's.)

Again (96 Md. 208, 53 Atl. 921, 60 L. R. A. 580) the court says that

"It may be conceded that in this state [Maryland], when a landlord has agreed to make repairs, there is a duty resting on him to do so, and upon his failure the tenant may either sue on his contract or bring an action on the case founded in tort for neglect of that duty."

Continuing, the court held that if the suit is brought for the tort the damages will be the same as if brought on the contract, citing B. & O. Ry. Co. v. Pumphrey, 59 Md. 398. In the latter case which involved the violation of the public duty of a carrier, the court said:

"It makes no difference whether the form of the action is ex delicto or ex contractu, the real and substantial gravamen of the complaint is the alleged breach of the contract, and in such a case the same law is applicable to both classes of action."

Thus, it seems to us, Thompson v. Clemens leads to this anomaly. The case agrees to the rule of law that damages for personal injury are too remote in an action for breach of a contract to repair, but are not too remote if based on a tort for breach of the duty that that contract creates, and yet also announcing that the damages are the same in either form of action.

We think it clear that Thompson v. Clemens and our Graff v. Brewing Co. are opposed to the great weight of authority and to sound reason as well, as we will proceed to show.

In the cases where a contract was involved and a duty was also claimed, the duty arose from the law, by reason of the relation of the parties, apart from the contract. It was never supposed that one could shelve his express contract, and yet recover on a duty the contract, alone, created. If the duty is created by an express contract, then the action would be on the contract, and not on a violated duty. Otherwise, as stated in Tuttle v. Gilbert Mfg. Co., 145 Mass. loc. cit. 175, 13 N. E. 465, one, instead of bringing an...