HOME OWNERS'LOAN CORPORATION v. Huffman

• Decision Date: 02 February 1942
• Docket Number: No. 12108.,12108.
• Citation: 124 F.2d 684
• Parties: HOME OWNERS' LOAN CORPORATION v. HUFFMAN.
• Court: U.S. Court of Appeals — Eighth Circuit

124 F.2d 684 (1942)

HOME OWNERS' LOAN CORPORATION v. HUFFMAN.

No. 12108.

Circuit Court of Appeals, Eighth Circuit.

January 13, 1942.

Rehearing Denied February 2, 1942.

Charles M. Miller, of Kansas City, Mo. (S. D. Frampton, of St. Louis, Mo., on the brief), for appellant.

Hale Houts and Price Wickersham, both of Kansas City, Mo. (William S. Hogsett and Henry Depping, both of Kansas City, Mo., on the brief), for appellee.

Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.

GARDNER, Circuit Judge.

This was an action to recover damages on account of personal injuries suffered by appellee as the result of a fall down a basement stairway in a dwelling house, at Kansas City, Missouri. We shall refer to the parties as they appeared in the trial court. The premises had been leased by the defendant to one George H. Sweeney as a dwelling house and were occupied by him as such at the time plaintiff received her injuries. Plaintiff was employed by Sweeney's wife as a beauty operator and was a member of his household when she received her injuries.

It is alleged that on or about July 16, 1938, Sweeney offered to rent the premises from the defendant upon condition that defendant would repair the steps to the basement and put them in a reasonably safe condition for use; that defendant accepted this offer and agreed to make said repairs and thereafter proceeded so to do; that prior to the negotiations for the lease of the premises, one of the treads of the steps was defective in that it was insecure and the outer portion thereof likely to tip when a person stepped on or put his weight upon it "by reason of not being securely nailed to the stringer underneath it;" that in the performance of the repairs defendant negligently "failed to repair said tread" and to make the steps reasonably secure. It is then alleged that plaintiff, as an employee of Sweeney, stepped and rested her weight upon said insecure tread, which gave way, causing her to fall down the steps, inflicting serious injuries upon her. It is also alleged that plaintiff's injuries were directly caused by the negligence of the defendant in that it "failed to repair said tread or remedy said defective and dangerous condition of said tread;" that in the performance of the repairs, defendant negligently made the tread more dangerous for the use of the tenant Sweeney and his employees by giving the steps and said tread a deceptive appearance of safety. It is then alleged that the defective condition was concealed and not easily discernable by the tenant or the plaintiff, that it was unknown to them but known to the defendant at the time it agreed to rent the premises to Sweeney and at the time Sweeney was placed in possession of the premises; that the defendant failed to inform Sweeney, or the plaintiff, of the defective condition, but negligently assured Sweeney that the premises and said steps had been repaired and were reasonably safe. The nature and extent of plaintiff's injuries are then described in the complaint.

Defendant, admitting jurisdictional allegations and admitting that it had rented the premises to Sweeney, denied any agreement to make repairs on the step or steps involved in the accident, and denied that it made repairs on the step involved and in effect denied all allegations of negligence on its part; alleged that plaintiff was guilty of contributory negligence and specifically challenged the right of plaintiff to maintain an action in tort.

The action was tried to the court without a jury and at the close of all the evidence defendant moved for findings in its favor and for judgment of dismissal upon grounds elaborately set out in its motion. This motion was denied and the court entered findings in favor of the plaintiff, assessing her damages at $20,000, and from the judgment entered thereon defendant prosecutes this appeal.

Defendant seeks reversal on substantially the following grounds: (1) the court erred in refusing the motion of defendant for findings in its favor and judgment of dismissal; (2) the trial court erred in making certain findings requested by plaintiff because they were not supported by the evidence; (3) the trial court erred in entering its conclusions of law; and (4) the trial court erred in refusing the conclusions of law requested by defendant.

The action is not for breach of a covenant to repair, but sounds in tort. That being true, it is not material what, if any, promises or agreements were made by defendant to the lessee as to the making of repairs. It is well established by the decisions in Missouri that a landlord can not be held liable in tort for personal injuries received by a tenant or one on the premises in his right as a result of the landlord's breach of his covenant to repair. Kohnle et al. v. Paxton, 286 Mo. 463, 188 S.W. 155; Lahtinen v. Continental Bldg. Co., 339 Mo. 438, 97 S.W.2d 102; Norris v. Walker et al., 232 Mo.App. 645, 110 S.W. 2d 404; Davis v. Cities Service Oil Co. et al., Mo.App., 131 S.W.2d 865; Logsdon v. Central Development Ass'n, 233 Mo.App. 499, 123 S.W.2d 631.

While the landlord may not be held in a tort action for damages for his failure to make repairs whether he has covenanted so to do or not, yet it is well established by the decisions in Missouri that if he undertakes to repair, he is required to exercise ordinary care in making such repairs and is liable for injuries caused by his negligence or unskillfulness in making them. Lasky v. Rudman, 337 Mo. 555, 85 S.W.2d 501; Vollrath v. Stevens, 199 Mo.App. 5, 202 S.W. 283; Shaw v. Butterworth, 327 Mo. 622, 38 S.W.2d 57. The defendant did not construct the dwelling house here involved, but acquired it through foreclosure proceedings. When thus acquired by defendant it was confessedly in need of substantial repairs to place it in habitable condition. With that in view, defendant had the premises inspected by an experienced carpenter who made report embodied in a typewritten specification of repairs which in his judgment should be made. This had been done before any negotiations leading up to the lease were begun, and during these negotiations defendant's agent displayed to Sweeney these specifications which showed what repairs were in contemplation. The specifications made no mention of repairs to the basement stairway, except that it called for a repair of "the landing on the basement stairs, replacing all broken and missing parts," and this repair was in fact made, and there is no claim of negligence with reference to making it. The court found, and the evidence is without dispute, that the defendant did not repair at any time the fourth tread or step, or the horses underneath, upon which the tread rested but that the only repair made by the defendant "was in the landing at the bottom of the stairs in question." The court also found "that Sweeney saw the specifications of repairs to be made on the house during the negotiations for renting the house." It thus appears without dispute that the defendant disclosed to Sweeney during the negotiations for leasing the property that so far as the stairway was concerned, it proposed to repair only the landing at the foot of the stairway. It is therefore clear that Sweeney, who was himself a civil engineer, knew that defendant did not propose to make any repair of the fourth tread of the stair, and, in fact, did not undertake to make any repair on that tread. If,...