Dier v. Mueller

Decision Date19 February 1917
Docket Number3729.
Citation163 P. 466,53 Mont. 288
CourtMontana Supreme Court

Appeal from District Court, Silver Bow County; J. B. McClernan Judge.

Action by Antonia Dier against W. H. Mueller. Judgment for defendant, and plaintiff appeals. Affirmed.

Harry Meyer and William Meyer, both of Butte, for appellant.

Walker & Walker, of Butte, for respondent.


This is an appeal from a final judgment in favor of defendant rendered after an order sustaining his demurrer to plaintiff's complaint. The averments of the complaint may be epitomized as follows:

The plaintiff and her husband were tenants of the defendant occupying the property at No. 623 South Idaho street in Butte. These premises consist of a one-story brick dwelling house of four rooms with a porch, and the lot upon which it is situated. The porch is about two feet above the ground and was used by the plaintiff and other members of the family as occasion or necessity required. The tenancy was from month to month. During its continuance the porch fell into disrepair, in that one of the boards in the floor became weak and insufficient in strength to hold the weight of a person who chanced to step on it. The defendant was notified of the condition and promised to cause the necessary repairs to be made more than a month prior to plaintiff's injury. Notwithstanding his promise, defendant failed and neglected to cause the repairs to be made. On July 22, 1914, the plaintiff stepped on the defective board which, because of its weakened condition, gave way under her weight, whereby she was thrown to the floor, sustaining a fracture of her right leg and other injuries which she believes to be permanent. She seeks to recover $5,000 as general damages, and $300 for expense incurred for medical treatment.

The demurrer presents the single question whether the complaint states a cause of action. The solution of this inquiry depends upon the proper interpretation of sections 5226 and 5227 of the Revised Codes. In Van Every v. Ogg, 59 Cal. 563, the Supreme Court had occasion to determine the purpose and scope of sections 1941 and 1942 of the Civil Code of California, which are identical with our own supra. In that case the contention was made that section 1941 (Rev. Codes, § 5226) by operation of law inserts in every lease a covenant to repair. In disposing of the contention the court said:

"But bearing in mind that at the common law no such covenant was implied, and reading the two sections together, the intent seems clear that the obligation of the landlord should be limited by the extent of the privilege conferred upon the tenant; that it is the duty of the landlord to repair upon notice, and if he does not perform this duty he is to be compelled to

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