McGinley v. Alliance Trust Co.

• Citation: 66 S.W. 153,168 Mo. 257
• Court: United States State Supreme Court of Missouri
• Decision Date: 17 December 1901
• Parties: McGINLEY v. ALLIANCE TRUST CO.<SMALL><SUP>1</SUP></SMALL>

66 S.W. 153

168 Mo. 257

McGINLEY v. ALLIANCE TRUST CO.¹

Supreme Court of Missouri, Division No. 1.

December 17, 1901.

LANDLORDS — APARTMENT BUILDINGS — DEFECTIVE STAIRWAY — LIABILITY TO TENANT — IMPROPER USER — JURY QUESTIONS.

1. Plaintiff and her sisters were sitting on the stairway used in common by their father and other tenants renting flats in defendant's apartment building, when their mother came up the stairway, and plaintiff, in order to let her pass, leaned against the stairway railing, which, being rotten, broke, and plaintiff was injured. The stairways were not leased by the tenants, but were used as necessary appurtenances to their flats, and there was no express reservation of control over them by defendant. Held, that the question of defendant's negligence in allowing the stairway to be out of repair was for the jury.

2. Whether plaintiff's use of the stairway was within the scope of the purpose for which it was intended and ought to have been used, was a question for the jury.

Appeal from circuit court, Jackson county; Edw. P. Gates, Judge.

Action by Kathleen McGinley against the Alliance Trust Company. From a judgment of nonsuit entered at close of plaintiff's evidence, she appeals. Reversed.

Action for damages by a member of a tenant's family against a landlord for personal injuries suffered by reason of alleged negligent construction and negligent failure to repair a stairway in the landlord's possession. The statements in the petition are to the effect: That defendant was the owner of certain tenement houses in Kansas City, divided off into flats or apartments, which were rented to tenants, each tenant renting and occupying exclusively a flat or suite of rooms, and using in common the back porches or galleries and stairways appurtenant for ingress and egress, the rooms or apartments alone being rented to and in the exclusive use of the respective tenants, while the porches or galleries and stairways were in the possession and control of the landlord, were not exclusively appurtenant to the apartments of any one tenant, but were designed and used by all the tenants in common for ingress and egress to and from their apartments respectively. That plaintiff's father rented one of these flats or suites of rooms, and lived in it with his family, of which the plaintiff was a member. Several months after the family had been living there, on a hot evening, — June 14, 1896, — the plaintiff and her two sisters were sitting on the steps of one of these stairways, eating a luncheon, when their mother, aiming to come into the house by means of this stairway, ascended the steps, and, there not being room enough for her to pass while the three sisters were sitting as they were, the plaintiff arose to make room for her mother to pass, and in doing so leaned against the railing of the stairway, which broke loose or gave way, and she fell to the ground below, about 16 feet, and suffered a serious injury. That the accident resulted from the fact that the railing was negligently constructed, in that it was not braced as it should have been, and was fastened with nails that were too small for the purpose, and which had been, exposed to the weather for three or four years, and the nail holes had become rotten; and the railing was negligently suffered to remain thus out of repair, the defendant knowing, or by ordinary care would have known, its condition, and the plaintiff did not know it. There was an answer of denial and contributory negligence. Upon the trial the testimony on the part of the plaintiff tended to prove the facts as above mentioned. There was no evidence that the defendant, in its contract with plaintiff's father, expressly reserved possession and control of the porches and stairways, but the circumstances tend to justify that inference. The express contract was only for a renting by the month of the suite of rooms. The porches and stairways were necessary appurtenances, but as such belonged as well to apartments rented to and occupied by other tenants as to the suite of rooms rented to and occupied by plaintiff's father. In the contract there was nothing said on the subject of repairs, or of the condition as to safety of the premises. At the conclusion of the plaintiff's evidence the defendant offered an instruction to the effect that the plaintiff was not entitled to recover, which instruction was given, a judgment of nonsuit followed, and the plaintiff appeals.

Wash Adams, Thos. F. Gatts, and N. F. Heitman, for appellant. Cook & Gossett, for respondent.

VALLIANT, J. (after stating the facts).

1. The question for our determination is whether a landlord is liable in damages to a member of his tenant's family under the circumstances above indicated. A member of a tenant's family in such case stands in the same relation to the landlord as the tenant himself. The question may therefore be more briefly stated thus: Is a landlord liable in damages to his tenant under such circumstances? A landlord is under no obligation to make repairs on the leased premises during the term unless he has contracted to do so, and therefore he is not liable for consequences that may result from a failure to so make repairs. But a statement of that familiar proposition does not answer the question before us. These porches and galleries were not a part of the premises rented to the plaintiff's father. He had only a use of them in common with all the other tenants similarly situated. His right to use them is implied from the situation. He could make no use of the apartments he had rented without them. Ordinarily, when repairs are...