Little v. Macadaras

• Decision Date: 31 January 1888
• Citation: 29 Mo.App. 332
• Parties: PRISCILLA LITTLE et al., Respondents, v. JAMES D. MACADARAS et al., Appellants.
• Court: Missouri Court of Appeals

29 Mo.App. 332

PRISCILLA LITTLE et al., Respondents, v. JAMES D. MACADARAS et al., Appellants.

Court of Appeals of Missouri, St. Louis.

January 31, 1888

APPEAL from the St. Louis Circuit Court, HON. DANIEL DILLON, Judge.

Reversed and remanded.

KRUM & JONAS, for the appellants: The petition does not state facts sufficient to constitute a cause of action. It is not alleged that the appellant had notice of the defective condition of the privy-seat, and did not make the necessary repairs within a reasonable time after such notice. Wolcott v. Sullivan, 6 Paige 117; Plow v Staff, 9 Mo.App. 309. The evidence utterly fails to prove the allegation upon which the whole cause of action rests, namely, that the appellant agreed to keep the premises in repair. Wehrman v. Priest, 12 Mo.App. 577. Upon the whole case, the jury ought to have been instructed to return a verdict for the appellants. The evidence, both in the case of the respondents and that of the appellants, shows that the respondent, Little, was herself guilty of gross carelessness. Nolan v. Shickle, 3 Mo.App. 300; S C., 69 Mo. 336.

A. R TAYLOR, for the respondents.

OPINION

THOMPSON J.

This action is brought by a married woman (with whom her husband is joined for conformity), to recover damages from the defendants for a hurt received by her through the defendants' negligence, as is alleged. The petition states that the plaintiff, John Little (husband of the plaintiff, Priscilla), was the tenant of certain premises belonging to the defendants; that the defendants " had undertaken and agreed to keep said premises in a condition of repair and tenantable; " that, prior to the twenty-fifth of February, 1884, " the defendants, by their agents, had undertaken to repair said premises; but said agents of the defendants did negligently and carelessly tear up the seat and framework of the privy upon said premises, and did negligently leave said privy in a defective and unsafe condition; that, whilst the plaintiff, Priscilla, was in said privy, by reason of the defective condition in which the agents of the defendants had so left said privy, she was, through said privy giving way by reason of its said defective condition, thrown against the timbers of said privy, and was thereby greatly and permanently injured." etc.

The answer, after a general denial, pleaded contributory negligence.

There was a trial by a jury, and a verdict and judgment for the plaintiff in the sum of twenty-five hundred dollars.

There was no evidence tending to show any agreement or undertaking on the part of the defendants to keep the premises in a condition of repair and tenantable. The only evidence offered as having a bearing upon this question, was evidence tending to show that the defendants, through their agents in charge of the premises, had from time to time made repairs upon the premises. But this is no more than all landlords who rent houses to monthly tenants do, in order to keep them from dilapidation. It was held by this court in Wehrman v. Priest, 12 Mo.App. 577, that, from the habit of making such repairs, no agreement or undertaking on the part of the landlord with his tenant can be inferred. There was, therefore, no evidence tending to show that the defendants had assumed toward this tenant any duty of making repairs or keeping the premises in a tenantable, or in a safe condition. In the absence of such an agreement or undertaking, the well-understood rule of law is, that the landlord is not liable for any hurt or damage that may accrue to the tenant, or to a member of his family, through his negligence in failing to perform such a supposed duty.

There was, however, evidence tending to show, that, a short time prior to the happening of the accident described in the petition, the...