Grant v. Tomlinson
| Decision Date | 31 May 1909 |
| Citation | 119 S.W. 1079,138 Mo.App. 222 |
| Parties | MARY GRANT, Respondent, v. ABIAH A. TOMLINSON, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Thomas J. Seehorn, Judge.
AFFIRMED.
Judgment affirmed.
Gage Ladd & Small for appellant.
The plaintiff being the employee of Mrs. Bell, the tenant of the premises, cannot recover in this case against the landlord unless the tenant herself could recover under like circumstances. Marcheck v. Klute, 113 S.W. 658; McGinley v. Trust Co., 168 Mo. 263; Peterson v Smart, 70 Mo. 34. In such cases the tenant or employee can only recover when the use at the time being made of the premises, was such as the landlord, when he rented them to Mrs. Bell, had a right to anticipate would be naturally made of them, and the appellant was not bound to anticipate naturally that they would be used as an egress by any person not acquainted with them and in the nighttime without light, and as they were used by the appellee. For the foregoing reasons the court erred in overruling appellant's objections to any evidence being heard in the case, in overruling appellant's demurrer to the evidence, and in giving any of the instructions given for the appellee. Glaser v. Rothschild, 106 Mo.App. 418; Gleason v. Boehm (N.J.), 34 A. 886; Helsinbeck v. Guhring, 131 N.Y. 674; Robinson v. Crimmins (N.Y.), 120 A.D. 250; Dailey v. Distler (N.Y.), 115 A.D. 102; Piper v. Railroad, 156 N.Y. 226; Eisenberg v. Railway, 33 Mo.App. 85; Poindexter v. Paper Co., 84 Mo.App. 352; Boyd v. Springfield, 62 Mo.App. 456; Dailey v. Distler, 115 App.Div. (N.Y.) 102; Railroad Look-and-Listen Cases passim.
Jay Read for respondent; Joseph A. Guthrie of counsel.
A landlord owes a duty if he undertakes to make repairs, to execute them carefully, and when he undertakes to repair the demised premises, irrespective of any obligation to do so, and in making these repairs is guilty of negligence creating a dangerous condition therein, he is liable to a third person injured thereby who came upon the premises at the invitation of the tenant. Barman v. Spencer, 49 N.E. 9; Curtis v. Kiley, 153 Mass. 123; 18 Am. and Eng. Ency. of Law, 239. A landlord is liable to a tenant or person properly on his premises for injuries caused at common entrances by excavations or openings, and owes his tenant and those employed by such tenant the duty not to expose them to a dangerous condition of the place which reasonable care on his part would have prevented. Camp v. Wood, 76 N.Y. 92; Brunker v. Cummins, 133 Ind. 443; Toomey v. Sanborn, 146 Mass. 28; Leydecker v. Buntnall, 158 Mass. 292; 46 L.R.A. 93; 14 L.R.A. 238. A landlord, when he exercises his right to enter during a tenancy, and makes such permanent repairs as are indispensable to the due protection of his reversionary interest, is bound to see that all reasonable care and skill are exercised in making these repairs to the end that the tenant may not suffer, and is liable for injuries caused by negligence in making repairs. Sulzbacher v. Dickie, 6 Daly 476; Anderson v. Fleming, 66 L.R.A. 154; Mitchell v. Plant, 21 Ill.App. 148; Callahan v. Loughran, 102 Cal. 476; Little v. Macadaras, 29 Mo.App. 332; Little v. Macadaras, 38 Mo.App. 187. Whether or not the use at the time being made of the premises was such as the landlord when he rented them to Mrs. Bell had a right to anticipate would be naturally made of them, is a question for the jury to decide. McGinley v. Trust Co., 168 Mo. 257, 263. The court committed no error in refusing instruction number two, as asked, or in giving it in its modified form; as asked it was erroneous, because a comment on the evidence, and because it withdrew the question of contributory negligence from the jury. As modified it was an absolutely correct declaration of law as far as it went, and if appellant desired any stronger statement as to the effect of contributory negligence, he should have asked for it. Brown v. Railway, 13 Mo.App. 467; State ex rel. v. Branch, 151 Mo. 622; State v. Donnelly, 9 Mo.App. 532.
This is a suit to recover damages for injuries alleged to have been sustained by plaintiff as the result of defendant's negligence.
The undisputed facts are that on the 10th day of November, 1906, Mrs. Martha B. Bell was the tenant of defendant Tomlinson, the owner of a three-story brick building and grounds at the northeast corner of Eleventh and Broadway streets in Kansas City; that the lower or ground floor of the building is so divided that one room faces Broadway and in the rear thereof there was at the time mentioned a dining room and kitchen; that at or near the rear end of the building and in its east wall was a door which provided a means of ingress and egress to and from the kitchen onto the outside premises in the rear and thence towards Eleventh street on the south side of the building.
It is also agreed that Tomlinson with the consent of his tenant, Mrs. Bell, had made certain improvements on the premises. They consisted in part of the erection on the outside of said east wall of a platform or floor, which persons going in or out of said door would necessarily pass over. Immediately below this platform defendant made an excavation of considerable depth.
Plaintiff's evidence tends to show that the platform did not entirely cover this excavation, but on the outer rim there was a space sufficient to admit the person of any one who should by accident fall into it. To remedy this defect, a couple of boards were laid across the excavation reaching from the porch to the earth. That plaintiff on the afternoon of the day in question entered into the services of Mrs. Bell and remained at the house until after dark. That when she got ready to leave for her home, all doors by which she could make her exit from the building were closed except this door in the east wall; that she was unfamiliar with the premises at this point, having entered previously by another door; that the cook of Mrs. Bell told her that she would have to go out by the back door and that she had better wait and go with her, as it was "a little rough" out in the backyard, "they have been building some out there;" that plaintiff said all right, then another employee, a colored woman, said to her, "Well, I am ready right now, just follow me and go with me;" that they started out in the dark, the colored woman in the lead, the plaintiff following; and that while plaintiff was passing over the planks she fell off into the excavation and was injured.
It is contended by plaintiff that the evidence shows that at the date of the occurrence the defendant was still engaged in making repairs on these premises, but this is denied by defendant, who asserts that he had completed them some time previously and had no control of the premises at the time.
Defendant in his evidence stated that he intended at first to erect a dining room over the excavation, but changed his mind and built the platform over the excavation for a porch; that the platform had been completed and that he did no more work upon it until in the next spring when he filled the excavation. There was no proof that defendant was under any obligation to make the improvements, but that he made them at his own instance with the consent of the tenant.
The tenant, Mrs. Bell, was made a party defendant to the suit, but the cause was dismissed as to her. Plaintiff recovered judgment and defendant appealed.
There can be no question but that the excavation imperfectly guarded was an act of negligence upon the part of some one and that plaintiff was not guilty of contributory negligence. The only question in the case is, is the negligence under the law and evidence to be attributed to defendant Tomlinson.
It is the law that a landlord is under no obligation, in the absence of an agreement with the tenant, to keep the leased premises in repair. [Peterson v. Smart, 70 Mo. 34.] And it is further held in said case that a servant of the tenant cannot recover for injuries sustained by reason of the want of such repairs unless the tenant has such right of recovery. In a late case, this court held that in the absence of a covenant the landlord is under no obligation to repair the premises during the tenancy. [Graff v. Lemp Brewing Co., 130 Mo.App. 618, 109 S.W. 1044.] Such seems to be the well-established law. And the St. Louis Court of Appeals holds that, "A landlord owes no greater duty to the tenant's children to keep premises in a reasonably safe condition than to the tenant himself." [Marcheck v. Klute, 113 S.W. 654.] The courts of this State seem to be in harmony and we do not deem it advisable to pursue the investigation further in order to ascertain the rulings of courts of other jurisdictions on the question.
Defendant insists that, having completed his...
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