Graff v. Wm. J. Lemp Brewing Company
| Citation | 129 S.W. 1005,145 Mo.App. 364 |
| Parties | JOHN GRAFF, Appellant, v. WM. J. LEMP BREWING COMPANY, Respondent |
| Decision Date | 09 July 1910 |
| Court | Kansas Court of Appeals |
Appeal from the Jackson Circuit Court.--Hon. Hermann Brumback Judge.
Judgment reversed and cause remanded.
John I Williamson for appellant.
F. V Kander for respondent.
The petition does not state a cause of action. Zellars v. Missouri Water & Light Co., 92 Mo.App. 107.
This is a suit by a tenant against his landlord to recover damages for personal injuries which it is alleged were caused by the negligent breach of the landlord's duty to repair the premises. Defendant demurred to the petition on the ground that it failed to state facts constitutive of a cause of action. The demurrer was sustained, plaintiff refused to plead further, and judgment was rendered for defendant. Plaintiff appealed to this court and holding that a good cause of action was pleaded, we reversed the judgment and remanded the cause. At the time our opinion was filed, April 8, 1908, our attention had not been called to the opinion of the Supreme Court in Glenn v. Hill, 210 Mo. 291, 109 S.W. 27, which was filed March 17, 1908, three weeks before the announcement of our opinion. When the cause was again heard in the trial court defendant renewed its demurrer to the petition and contended that the doctrine of our decision had been repudiated by the Supreme Court in the Glenn case. The learned trial judge adopted that view of the two decisions and, giving controlling effect to that of the Supreme Court, again sustained the demurrer. Plaintiff stood on the petition, judgment was rendered for defendant and again plaintiff appealed to this court.
The prominent features of the present case thus may be stated: At the time of the letting of the premises, the floor of the building not only was defective, but it was in a dangerous condition and its use by the tenant would be attended by risk of personal injury. With knowledge of this condition, the landlord, as a part of the contract of letting, promised to repair the floor and the tenant relied on the promise. The landlord negligently failed to make the repairs and the tenant while properly using the floor sustained personal injuries in consequence of its defective condition.
In our former opinion, we gave complete approval to the doctrine that an action sounding in tort for the recovery of damages for personal injuries sustained by the tenant in consequence of the breach of the landlord's promise to repair could not be maintained even in cases where the promise was a part of the contract of letting, and held that "the measure of damages in such cases is the expense incurred by the tenant in the doing of the work the landlord agreed to do but did not, and that personal injuries to the tenant sustained in consequence of the defective condition are a result too remote to be considered as having been in the contemplation of the parties at the time the contract was made." In the Glenn case this rule was stated in about the same way and we fail to find anything in that decision which militates against the soundness of...
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