Glenn v. Hill

• Decision Date: 17 March 1908
• Citation: 210 Mo. 291,109 S.W. 27
• Parties: GLENN v. HILL et al.
• Court: Missouri Supreme Court

109 S.W. 27

210 Mo. 291

GLENN v. HILL et al.

Supreme Court of Missouri. Division No. 2.

March 17, 1908.

1. LANDLORD AND TENANT — CONDITION OF PREMISES—LANDLORD'S LIABILITY TO TENANT.

A landlord is not liable for failure to put or keep the premises in repair, or for injuries sustained by the tenant because thereof, in the absence of an agreement in the lease binding him to do so.

2. SAME.

A heating furnace on premises leased by plaintiff and her husband becoming worn out, defendant lessors were notified to repair or replace it with a new furnace, which they agreed to do before the cold weather of the following fall. After taking out the old furnace lessors negligently failed to replace it within a reasonable time, and left the premises in an untenantable condition, in consequence of which plaintiff and her husband were exposed to the extreme cold, resulting in the death of plaintiff's husband. Held, in an action therefor, that as the same was predicated on a negligent failure to complete the work in a reasonable time, there was no cause of action, since the promise to repair having been made after execution of the lease was without consideration.

3. DEATH — RIGHT OF ACTION — GROUNDS — BREACH OF AGREEMENT TO REPAIR.

Breach of an agreement by a landlord to repair, resulting in a tenant's death, will not furnish a basis for an action of tort within Rev. St. 1899, § 2865 (Ann. St. 1906, p. 1644), giving a right of action for death due to wrongful act, where the act is such as would, if death had not ensued, have entitled the party injured to damages, but the remedy is an action for damages for breach of contract.

Error to Circuit Court, Jackson County; W. B. Teasdale, Judge.

Action by Alice Glenn against Henry E. Hill, David P. Richie, and another. Judgment for defendants, and plaintiff, having dismissed as to Richie, brings error. Affirmed.

Durall & Durall, for plaintiff in error. Gage, Ladd & Small, for defendants in error.

BURGESS, J.

This is an action for $5,000 damages for the death of plaintiff's husband, caused as alleged in the petition, by the negligence and carelessness of the defendants. Omitting caption, the petition is as follows: "Now on this day comes the plaintiff, and after obtaining leave of the court to file this amended petition, says for her cause of action against the defendants David P. Richie, John B. Hill, and Henry E. Hill that said defendants John B. Hill and Henry E. Hill were, at the happening of the grievances hereafter mentioned, the owners of what is known as the `Hypatia,' a large brick building located at Nos. 1232 and 1234 Penn street, in Kansas City, Mo.; that on the 7th day of September, 1901, said defendants, by their agents, leased said premises to defendant David P. Richie for three years; that said Richie used said building as a hotel and boarding house, and on December 2, 1902, said Richie sold the furniture and good will of said premises to plaintiff and her husband, and the plaintiff and her husband thereupon went into possession of said building and premises, occupying the same as a hotel and boarding house, and continued to so occupy said premises until the death of Andrew L. Glenn, plaintiff's husband; that there were two furnaces furnished by defendants for the purpose of heating said premises, said furnaces being fixtures in the basement, and during the year 1903, in the winter of said year, said furnaces became worn-out, defective, and insufficient for heating said premises, and it became necessary to repair and replace one furnace with a new one, and to remove said furnace from said premises; that in the spring of 1903, and in September of 1903, defendants, by their agents, D. Ellison & Son, were notified to fix, repair, and remove one furnace, which defendants then and there agreed to do, and have the same in good condition before cold weather in the fall of 1903 and winter of said year; that said defendants negligently and carelessly failed to remove said furnace until the 19th day of October, 1903; that said defendants negligently and carelessly failed to replace said furnace with a new one until November 28, 1903, at which time, and for a long time prior thereto, the weather was very cold and damp, and the defendants undertook to make said repairs and replace said old and worn-out furnace with a new one, fit for heating said premises, and during said period of time defendants promised plaintiff and her husband that they would fix and repair the said furnace, and defendants, by said promises, induced plaintiff to remain in said building until the same was replaced with a new one, and during said time plaintiff and her husband were subjected to exposure, cold, and damp rooms, when defendants well knew, or could have known by the exercise of due care, but defendants negligently and carelessly failed to begin said repair and furnish a new furnace until late in the fall which, plaintiff alleges and avers, was unreasonable delay on defendants' part; that defendants undertook to replace said old and defective furnace with a new one, and negligently and carelessly failed to place said new furnace in said premises until November 28, 1904, which, plaintiff alleges and avers, was unreasonable delay and negligence and carelessness on defendants' part, which plaintiff avers was a wrongful act on the part of defendants, and during said time defendants failed to furnish stoves or other heat necessary to warm said premises. Defendants at all times and dates, by their agents aforesaid, accepted the rent, viz., $100 per month, for the use and occupancy of said premises, with two furnaces sufficient to heat said building and premises, and by reason of the neglect, carelessness, and wrongful acts of defendants aforesaid, and the revised statutes of Missouri and laws of said state, a cause of action has arisen in favor of plaintiff, for the following reasons, to wit: That during said time plaintiff's husband was subjected to exposure, cold, and said premises in an unheated condition, from which exposure he (the said Andrew L. Glenn) contracted a severe cold, hoarseness, continued exposure, a relapse, and more cold, said furnace being daily expected by plaintiff and her husband, and thereby plaintiff and her said husband were induced to remain in said premises, and on November 16, 1904, in Kansas City, Mo., at said premises, plaintiff's husband died as a result of said exposure, cold, and defendants' wrongful acts; that by reason of the premises aforesaid plaintiff lost her husband, Andrew L. Glenn, as the result of the exposure, cold, dampness, and unheated condition of the premises, Nos. 1232 and 1234 Penn street, there being improper heat, caused by the unreasonable delay and wrongful acts of the defendants aforesaid in not furnishing a proper furnace or stoves, which was their duty to do, as they (the defendants) accepted rent for the same, viz., $100 per month; that by reason of the premises aforesaid plaintiff has sustained damages in the sum of $5,000. Wherefore, plaintiff asks judgment against said defendants in the sum of $5,000, together with her costs." Defendant Richie filed his demurrer to the petition, and the two Hills filed a joint demurrer, on the ground that the petition failed to state facts sufficient to constitute a cause of action, both of which demurrers were sustained, and the plaintiff refusing to plead further, judgment on the demurrers was rendered in favor of all the defendants. Thereafter plaintiff dismissed as to defendant Richie, and filed her affidavit for appeal to this court. Afterwards she sued out a writ of error, and the cause is here on a return to said writ.

There is no averment in the petition that under the contract of leasing the defendants agreed to repair, and the absence of an agreement in the lease binding the landlord to put or keep the premises in repair, he is not liable in damages for failure to do so or for injuries sustained by the tenant by reason thereof. Vai v. Weld, 17 Mo. 232; 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; Taylor's Landlord and Tenant (9th Ed.) §§ 327, 328; Wood on Landlord and Tenant (2d Ed.) § 379; Brewster v. De Fremery, 33 Cal. 341. But the petition in effect alleges that defendants took out the old furnace, and while in the act of replacing it with a new one carelessly and negligently failed to complete the work in a reasonable time, and left the premises in an untenantable condition for an unreasonable length of time, in consequence of which plaintiff and her husband were unduly exposed to the winter and the extreme cold, which resulted in the death of plaintiff's husband. The promise to repair made after the execution of the lease was verbal, gratuitous, and without consideration, and could not form the basis of a cause of action for its breach. Wood on Landlord...