Graff v. Lemp Brewing Co.

• Decision Date: 06 April 1908
• Citation: 130 Mo. App. 618,109 S.W. 1044
• Parties: GRAFF v. LEMP BREWING CO.
• Court: Missouri Court of Appeals

109 S.W. 1044

130 Mo. App. 618

GRAFF v. LEMP BREWING CO.

Kansas City Court of Appeals. Missouri.

April 6, 1908.

Rehearing Denied May 4, 1908.

1. LANDLORD AND TENANT—PREMISES—LANDLORD'S DUTY TO REPAIR.

In the absence of a covenant to do so, the landlord is not bound to repair the premises during the tenancy, and is not liable in damages for injuries resulting to the tenant from his failure to repair the leased premises; the landlord only being liable for his acts of misfeasance, in the absence of contract.

2. SAME—COVENANT TO REPAIR—BREACH OF COVENANT—SUIT ON CONTRACT—LANDLORD'S LIABILITY.

A tenant cannot, either in an action for the breach of his landlord's contract to repair, or by way of counterclaim in his suit on contract, recover for personal injuries resulting from the breach of the landlord's covenant to repair, as his measure of damages is the expenses incurred in making the repairs which the landlord failed to make, and the injuries resulting from the breach of contract are too remote to be considered as contemplated by the parties; it being necessary that the landlord's acts amount to a misfeasance to entitle the tenant to recover.

3. TORTS — ACTS CONSTITUTING BREACH OF DUTY.

Where a covenant creates a duty, the neglect to perform that duty is a ground for an action in tort, and, where a duty becomes an incident to the status or relationship established between two parties, whether the duty results from such status or from the contract of the parties, a negligent omission to discharge it is a tort, giving the injured party a cause of action ex delicto.

4. LANDLORD AND TENANT — INJURIES FROM DEFECTS—BREACH OF COVENANT TO REPAIR —CONDITIONS OF RECOVERY BY TENANT.

To entitle a tenant to recover for personal injuries resulting from the breach of the landlord's covenant to repair, the landlord must have had knowledge of the defect, and the defect must be such that a reasonably prudent person would know that prompt action was necessary, and that the use of the premises in the defective condition would be attended by risk of injury; and where the floor of a house leased by plaintiff was broken and decayed in various places, and defendant agreed upon leasing and at various times thereafter to make necessary repairs, but failed to do so, and plaintiff relied on his promises and remained in the house, he may recover for personal injuries resulting from such defects, since defendant must be presumed to have known that injury to plaintiff would be the natural result of his negligent breach of his duty to repair.

5. SAME—CONTRIBUTORY NEGLIGENCE OF TENANT.

In an action for personal injuries resulting from the landlord's breach of his covenant to repair, the landlord having covenanted in the lease to repair, and agreed at various times thereafter to do so, the tenant was justified in relying on the promises to repair the defects, notwithstanding the lapse of a reasonable time for fulfilling the promises, and it was not contributory negligence, as a matter of law, for the tenant to continue to use the premises, unless the danger was so obvious as to threaten immediate injury.

6. SAME — ACTIONS — QUESTION FOR JURY — CONTRIBUTORY NEGLIGENCE.

In an action for personal injuries to a tenant by the landlord's failure to repair as agreed, if the tenant was justified in assuming that the danger from the defect was not imminent, whether he was guilty of contributory negligence in remaining in and using the defective premises was for the jury.

7. SAME — PLEADING — CONTRIBUTORY NEGLIGENCE — NECESSITY OF PLEADING SPECIALLY.

In an action for personal injuries to a tenant by the landlord's failure to repair defective premises as agreed, contributory negligence of the tenant in continuing to use the defective premises must be specially pleaded.

Appeal from Circuit Court, Jackson County; Hon. H. L. McCune, Judge.

Action by John Graff against the Lemp Brewing Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

John I. Williamson, for appellant. F. V. Kander, for respondent.

JOHNSON, J.

Action by a tenant against his landlord to recover damages for personal injuries alleged to have been caused by the negligent failure of the landlord to repair. It is alleged in the petition that defendant, the lessee of a business house in Kansas City, sublet the storeroom on the first floor to plaintiff for use as a dramshop; "that at said time the floor of said storeroom was broken and decayed in various places and at the places hereinafter mentioned, and at the time plaintiff rented said storeroom, and as part of the contract of renting, and as part of the consideration for the payment by this plaintiff to defendant of said sum per month, defendant promised and agreed with plaintiff that it would put said storeroom in a good state of repair, and in particular would repair said hereinafter mentioned broken and decayed places in said floor; that, relying upon said agreement and contract on the part of defendant, plaintiff took possession of said storeroom on or about the 10th day of April, 1905, under said contract, and thereafter remained in possession thereof at all times hereinafter mentioned and duly fulfilled and performed all the conditions of said contract on his part; that defendant negligently and carelessly failed to repair said decayed and broken places in said floor, though often requested by plaintiff so to do, but whenever the matter was brought to defendant's attention by plaintiff defendant promised and agreed to make said repairs immediately and to put the same in a fit and proper condition for use, and for this reason plaintiff, relying upon said promises of defendant, did not make said repairs himself; that defendant at all times herein mentioned had notice of the existence, character, and extent of said defects in said floor, and had also...