Korach v. Loeffel

• Decision Date: 03 December 1912
• Citation: 168 Mo. App. 414,151 S.W. 790
• Parties: KORACH v. LOEFFEL.
• Court: Missouri Court of Appeals

151 S.W. 790

168 Mo. App. 414

KORACH v. LOEFFEL.

St. Louis Court of Appeals. Missouri.

December 3, 1912.

Rehearing Denied December 14, 1912.

1. PLEADING (§ 252) — DEMURRER — PLEADING OVER — EFFECT.

Where, after a demurrer has been sustained, plaintiff files a new petition, the original petition is abandoned, and goes out of the record.

2. PLEADING (§ 8) — PETITION — CONCLUSIONS.

In an action against a landlord for injuries to the tenant's minor child from the falling of a mantel in the demised premises, an averment in the petition that it was the duty of the landlord to have the premises in a safe condition for the use of plaintiff is a mere conclusion, and is not equivalent to an allegation of an express covenant to repair.

3. LANDLORD AND TENANT (§ 164) — PREMISES — INJURIES FROM DANGEROUS CONDITION — DUTY OF LANDLORD.

While a landlord, who demises parts of premises to a number of tenants, is bound to maintain in reasonable repair a common passageway, he is not bound to maintain or keep in repair premises demised as a dwelling, there being no implied warranty in the contract of letting that the premises are tenantable or suitable for the purposes for which they are leased; and hence, though the demised premises were a ramshackle house, the tenant's minor child, who was injured by the falling of a mantel, cannot recover.

4. LANDLORD AND TENANT (§ 150) — PREMISES — REPAIRS — ENTRY.

Where a single dwelling was demised to one person, without any covenant as to repairs, no one, not even the landlord, could enter, without defendant's consent, to make repairs.

5. LANDLORD AND TENANT (§ 164) — INJURIES FROM DANGEROUS CONDITION — COVENANT TO MAKE REPAIRS.

Though it was agreed that the landlord should repair the demised premises and make them reasonably safe, a breach of that covenant will not support an action for personal injuries due to failure to make such repairs, those injuries being deemed too remote to have been contemplated by the parties when the covenant was given.

Appeal from St. Louis Circuit Court; Chas. C. Allen, Judge.

Action by Irene Korach by L. F. Korach, her next friend, against Anna M. Loeffel. From a judgment for defendant, plaintiff appeals. Affirmed.

C. Porter Johnson and W. Blodgett Priest, both of St. Louis, for appellant. Julius T. Muench, of St. Louis, for respondent.

REYNOLDS, P. J.

In this case plaintiff, after filing an original and two amended petitions, to each of which demurrers were successfully interposed on the ground that they stated no cause of action, filed her third amended petition. In this she avers that she is an infant under the age of two years, that her father has been duly appointed her next friend, has duly qualified as such, and that she brings this action by that father as her next friend. It is then averred that on a day named her father, by a verbal contract, leased certain premises in the city of St. Louis of the defendant, then the owner and in possession of them, for the purpose of residing therein with his family, including plaintiff; that afterwards Korach with his family, including plaintiff, took possession of and moved into and began the occupancy of the premises as a residence, "and plaintiff then and there became a tenant of this defendant." It is further averred that it was the duty of defendant by the terms and conditions of the verbal lease, to have the premises in a safe and proper condition for the use and occupancy of plaintiff so that plaintiff could occupy them with safety, but it is alleged that the premises were not, at the time of the renting, and for a long time prior thereto had not been, in a safe condition; that there was located in one of the rooms a large fireplace or grate, over which was a large and heavy metal plate or metal sheet covering, so adjusted and placed that plaintiff could not see or know by the exercise of ordinary care that it was insecurely and improperly fastened and could not see or know that it was dangerous and unsafe and liable to give way and fall. Plaintiff avers that defendant negligently and carelessly permitted this metal sheet covering over the grate to be so placed, adjusted and maintained that at the time of the leasing it was dangerous to the occupants of the premises including plaintiff, and that defendant knew or could have known by the exercise of ordinary care and prudence that it was dangerous and unsafe; that defendant could have repaired the same and prevented the happening of the injuries complained of but that defendant negligently and carelessly permitted this grate or plate to be and remain in the unsafe and dangerous condition thereby directly causing the injuries to plaintiff of which she complains. That on a day named and while plaintiff was occupying the premises and was on the floor of the parlor or sitting room in which this grate was located and while she was within about three feet of the fireplace, the metal sheet, plate, or covering over the grate, by reason of its unsafe, insecure and dangerous condition, as before mentioned, fell from its place onto and upon plaintiff, crushing and bruising her left hand, breaking and fracturing the second and third fingers of that hand and causing plaintiff severe pain and anguish. Charging that her injuries are serious and permanent and that she has suffered great pain of body and mind, she demands judgment for $5,000.

A demurrer was filed to this petition on the ground that it does not state facts sufficient to constitute a cause of action. This demurrer was sustained and plaintiff electing to stand upon the petition and declining to plead further, judgment followed...