McCarthy v. Fagin

• Citation: 42 Mo.App. 619
• Parties: JUSTIN MCCARTHY, Respondent, v. A. W. FAGIN, Appellant.
• Decision Date: 30 October 1888
• Court: Court of Appeal of Missouri (US)

42 Mo.App. 619

JUSTIN MCCARTHY, Respondent, v. A. W. FAGIN, Appellant.

Court of Appeals of Missouri, St. Louis.

October 30, 1888

Motion for rehearing overruled Dec. 16, 1890.^[a1]

Appeal from the St. Louis City Circuit Court. --HON. GEO. W. LUBKE Judge.

REVERSED.

Noble & Orrick and Geo. R. Lockwood, for appellant.

T J. Rowe, for respondent.

ROMBAUER P. J.

The plaintiff tenant recovered in the trial court a judgment for six hundred and fifty-one dollars against the defendant landlord, for damages caused to him by the falling of a wall which was part of the premises let. No question is made on this appeal as to the extent of the recovery, but the landlord, appealing, contends that, on the facts conceded by the record, any recovery was unwarranted, as a proposition of law, regardless of other errors intervening in the trial of the cause. As this contention, if well founded, disposes of the entire controversy, we shall proceed to examine it in the first instance.

The facts upon which the defendant's liability is claimed are thus stated in the petition:

That on April 30, 1886, the defendant leased to the plaintiff for the term of twenty months from May 1, 1886, two rooms, numbered 1 and 2, on the second floor of a building, numbered 812 Olive street, in the city of St. Louis, Missouri; that on May 1, 1886, the plaintiff took possession and occupied the premises until the accident mentioned in the petition, as tenant; that the defendant was the owner of the building at the times thereinafter mentioned, and had the possession and control of the same; that on April 30, 1886, and for a long time prior thereto, the foundation of the west wall of the building was in a weak, unsubstantial, unsafe, insecure and dangerous condition; that on April 30, 1886, and for a long time prior thereto, the foundation of said west wall of the building was unsafe and insecure, and defendant knew said fact, and that plaintiff did not know that said foundation of said west wall of said building was in an insecure and unsafe condition; that at the time defendant leased to plaintiff said rooms defendant failed to notify and advise plaintiff of the insecurity of said wall, although he well knew that same was in an unsafe and insecure condition, and plaintiff did not know the same was unsafe and insecure; that plaintiff did not have access to, or the possession and control of, said west wall of said building, or the control of the foundation of said building or the premises appurtenant to the same; that the defendant for a long time prior to April 30, 1886, knew that the foundation of the west wall of said building, 812 Olive street, was in a weak and dangerous condition, and that the same was so unsafely and insecurely built and constructed that it was apt to fall down; and the plaintiff, at the time he leased said premises, did not know that the same was unsafe and insecure, and that the defendant, before the happening of the accident, hereinafter mentioned, and after he knew of the insecure and dangerous condition of said wall, had ample time during which to make said wall safe and secure, and to prop up and properly guard and brace the same; that it was the duty of defendant, within a reasonable time after he had notice that said wall was unsafe and insecure and dangerous to properly prop up, shore up and brace up said wall, but that the defendant carelessly and negligently failed, refused and neglected to prop up and protect said wall, and to make the same strong and safe and secure within a reasonable time after he had notice of the same being unsafe, insecure and dangerous and liable to fall down; that on or about June 11, 1886, by reason of the carelessness and negligence of the defendant in failing, refusing and neglecting to prop up and guard said wall within a reasonable time after he had notice of its weak, dangerous and insecure condition, said west wall of said building, 812 Olive street, fell down; that a small part of said west wall was the west wall of one of the rooms leased to plaintiff.

The answer denied the allegations of the petition, and averred that the damage complained of, if any, was caused by the negligence of the plaintiff.

The defendant, it seems, had demurred to this petition, and, upon the trial, again objected to the introduction of evidence, on the ground that it failed to state any cause of action, and the objection is now renewed.

The defendant's argument on that head is, that it is the gist of plaintiff's complaint that the wall was defective at the date of the letting, and so insecurely constructed as to be dangerous, and that, as the petition neither avers that the defect was a secret defect, nor that the defendant concealed it from the plaintiff, nor that there was any duty on the part of defendant to disclose it, the petition fails to state a cause of action.

If the view taken by a majority of this court in Ward v. Fagin, 28 Mo.App. 116, be the correct one, which, for the purposes of this case, we are bound to assume, then the petition does state a good cause of action. We there held that, while a renting does not imply that the premises are fit for occupancy, and while the landlord is under no implied obligation to the tenant to repair the premises, yet the tenant, who is restricted by the terms of his letting to one part of the premises, and who has no possession, control or right of interference with other parts, which are in the exclusive possession of the landlord, occupies no worse position than a stranger.

Here the petition does charge that the defendant was the owner of the building at the times thereinafter mentioned, and had the possession and control of the same, and it will not be questioned that, if he negligently and knowingly permitted the building to remain in an insecure condition, whereby it fell, injuring the property of a stranger, such stranger would have been entitled to full redress.

The lease given by the defendant to the plaintiff, and introduced in evidence by the latter, provided among other things " All repairs deemed necessary by...