French v. Pettingill
| Decision Date | 17 December 1907 |
| Citation | 106 S.W. 575,128 Mo.App. 156 |
| Parties | FRENCH, Appellant, v. PETTINGILL, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Matt G. Reynolds Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Stern & Haberman for appellant.
(1) The act of adjoining tenant under the same landlord, not the result of the landlord's connivance, does not amount to a constructive eviction. Gray v. Gaff, 8 Mo.App. 329; Dimmock v. Daily, 9 Mo.App. 356; Witte v Quinn, 38 Mo.App. 691; O'Neill v. Manget, 44 Mo.App. 279; 11 Am. and Eng. Ency. Law (2 Ed.), p. 474; Talbott v. English, 59 N.E. 857; Gilhooley v Washington, 4 N.Y. 217; Cougle v. Densmore, 57 Ill.App. 591; Bristol v. Pegram, 98 N.Y. 512, 49 Misc. 535; Lieferman v. Osten, 167 Ill. 93, 39 L. R. A. 158; Shawmut v. Boston, 118 Mass. 128; Seabord v. Fuller, 67 N.Y. 147, 33 Misc. 109. (2) The act of the landlord must be an intentional one to constitute an eviction. 18 Am. and Eng. Ency. of Law (2 Ed.), 298; 11 Am. and Eng. Ency. of Law (2 Ed.), 471; Barrett v. Boodie, 42 N.E. 144, 158 Ill. 479; Demmick v. Elkdahl, 102 Ill.App. 199; Kissler v. Wilson, 77 Ill.App. 141; Townsend v. Gilsey, 1 Sweeney (N.Y. Sup.) 155. (3) Remaining in possession after the acts alleged to constitute a constructive eviction is a waiver of the right to repudiate the letting and an election to perform the covenants of the lease. 11 Am. and Eng. Ency. of Law (2 Ed.), 480; Crommelin v. Thiess, 31 Ala. 412.
Forest P. Tralles for respondent.
(1) Jackson v. Eddy, 12 Mo. 209; Lay v. Bennett, 4 Colo.App. 252; Dougherty v. Seymour, 16 Cole 289. (2) The common landlord cannot control the independent, lawful acts of his tenants; hence constructive eviction cannot be predicated of such acts in which the landlord does not participate (Gray v. Gaff, 8 Mo.App. 329), but the landlord can control the wrongful immoral or unlawful acts of his tenants and when such acts disturb the quiet enjoyment of other of his tenants and the landlord fails to remedy such conditions he makes the unlawful act his own and a tenant so injured may abandon possession and defend in an action for rent on the ground of constructive eviction. Dyett v. Pendleton, 8 Cowen 727; Edgerton v. Page, 20 N.Y. 281.
--This action was instituted to recover rent alleged to be due under a written lease. So far as the record advises us the terms of the contract were that defendant leased the premises for two years from October 1, 1904 at a monthly rental of $ 55 payable in advance. The lessor was the Majorie Realty Company and the lessee was the defendant. Plaintiff French became the owner of the premises and the landlord, March 15, 1905. The leasehold was a suite of rooms in an apartment house in the city of St. Louis on the north-west corner of Olive street and Newstead avenue. The building is known as the "Alexandria" and is a large structure with a frontage of more than a hundred feet on Olive street and running back northwardly 150 feet along the west line of Newstead. It is three stories high and was constructed for occupancy by many tenants. The first or ground floor, on Olive street, was fitted up for storerooms and there was a bowling alley in the basement near the Olive street front and extending across the building. The bowling alley was without windows or openings except a door reached by a stairway which descended from the west store room on Olive and another door near Newstead avenue, connected with the portion of the basement, which was used as a cafe. The cafe rooms in the basement were entered only from Newstead avenue about one hundred feet north of Olive. The cafe was therefore far toward the rear of the basement and about 175 feet distant from the entrance to defendant's third-story apartment. The noise of bowling in the basement annoyed defendant and disturbed her slumber to some extent; but she testified she was disturbed too by the street cars along Olive street and could not say her loss of sleep was due exclusively to the bowling. Meals and liquors of various kinds were served in the cafe and from the first there was a bar in it. A club known as the Alexandria Club had its quarters in the building, and began to meet there about January 1, 1905. The relation of this club to the cafe is not clearly set out by the testimony, but the indications are the club and cafe occupied the same rooms, and in the summer of 1905, the club finally absorbed the cafe; that is to say, during and after said season, no one who was not a member of the club would be served in the cafe. Defendant testified she took meals in the cafe herself on two or three occasions; that the guests appeared to be perfectly respectable and she saw nothing improper. But the evidence tends to show that in the summer of 1905 and thereafter, drunkenness and disorderly conduct were sometimes observed among the members of the club in the cafe apartments. Intoxicated men, women and youths were seen to leave the building and heard to use indecorous language. They would remain until late hours after night and were more or less boisterous. This happened, too, on Sunday afternoons. Sometimes singing, laughing, hilarious talking and even fighting were heard inside the clubrooms. There is no proof of lewd conduct about the premises, and it is not asserted any conduct of that sort took place. On October 15, 1905, defendant ceased to occupy her apartments in the Alexandria building for lodging purposes, but continued to give music lessons in them. It should be stated she was a maiden lady who gave instructions in music. On January 15, 1906, she vacated her apartments entirely, having rented others in a building known as the Musical Arts Building, a block or two away, which was specially arranged for the use of instructors in music. Defendant paid her rent to the date she vacated, but her apartments remained unoccupied thereafter until April 1st, when they were let for $ 40 a month, credit given defendant for the rent of the half month ending April 15th, and the present action begun to recover the balance of the rent from January 15th. The defense is such disturbance of defendant's use and quiet enjoyment of her apartments as amounted to a constructive eviction. To support this supposed eviction, defendant relies on the noise of the bowling in the basement and on the manner in which the cafe and club were conducted, which, she says, brought the building into bad repute, affected her own...
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