McGinley v. Alliance Trust Company
| Decision Date | 29 March 1902 |
| Citation | 66 S.W. 153,168 Mo. 257 |
| Parties | McGINLEY Appellant, v. ALLIANCE TRUST COMPANY |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. E. P. Gates, Judge.
Reversed and remanded.
Wash Adams, N. F. Heitman and Thos. F. Gatts for appellant.
The court erred in sustaining the demurrer to the evidence and in overruling the motion to set aside the nonsuit. The defendant was guilty of negligence. The owner of a building, who divides it into several apartments, which he lets to various tenants, retaining to himself control of the halls and stairways for the common use of the different tenants, and those having lawful occasion to be there, is bound to see that reasonable care and skill are exercised to render the halls and stairways reasonably fit for the uses which he thus invites his tenants and others to make of them; and is responsible for any injury which his tenants and others lawfully using them with due care, sustain through his failure to discharge this duty. Responsibility follows control. 18 Am. and Eng. Ency. of Law (2 Ed.), pp. 217, 220 and 245; Sawyer v. McGillicuddy, 81 Me. 318, 10 Am St. Rep. 260, 3 L. R. A. 458; Miller v. Hancock, 4 Q. B. App. 478; McMartin v. Hannay, 10 Ct. Sess. Cas (3rd Ser.) 411; Ivey v. Hedges, L. R. 9, Q. B. Div. 80; Gilloon v. Reilly, 50 N. J. L. 26; Gleason v. Boehm, 58 N. J. L. 475; Peil v. Reinhart, 127 N.Y. 381, 12 L. R. A. 843; Karlson v. Healey, 56 N.Y.S. 361; Dollars v. Roberts, 130 N.Y. 269, 14 L R. A. 238, and valuable note distinguishing Ward v. Fagin, 10 L. R. A. 149; Watkins v. Goodall, 138 Mass. 533; Looney v. McLean, 129 Mass. 33, 37 Am. Rep. 295; Harrison v. Jelly, 175 Mass. 292; Wilcox v. Zane, 167 Mass. 302; O'Maley v. Assoc., 170 Mass. 471 (Hoisting apparatus); Coupe v. Platt, 172 Mass. 458, 70 Am. St. Rep. 293; Robbins v. Atkins, 168 Mass. 45; Marley v. Wheelwright, 172 Mass. 530; Priest v. Nichols, 116 Mass. 401; Milford v. Holbrook, 9 Allen 17; Lindley v. Leighton, 150 Mass. 285; Shipley v. Asso., 101 Mass. 251; Readman v. Conway, 126 Mass. 374; Gorden v. Cumminge, 152 Mass. 513, 23 Am. St. Rep. 846; Yeydecker v. Brintnall, 158 Mass. 292; Marwedel v. Cook, 154 Mass. 235; Freidenburg v. Jones, 66 Ga. 501 (); Nash v. Mill Co., 24 Minn. 501, 31 Am. Rep. 349 (); O'Connor v. Andrews, 81 Tex. 28; Burns v. Soloman (C. P.), 3 Ohio N. P. 185, 1 Ohio L. D. 232; Schilling v. Abernathey, 112 Pa. St. 437; Payne v. Irvin, 144 Ill. 482; Glickauf v. Maurer, 75 Ill. 289, 20 Am. Rep. 238; Tomle v. Hampton, 129 Ill. 379 (Invitation to use); Fisher v. Janson, 30 Ill.App. 91, s. c., 128 Ill. 549; Brunker v. Cummins, 133 Ind. 443 (Invitation to use); Barman v. Spencer (Ind.), 44 L. R. A. 815; Davis v. Pacific Power Co., 107 Cal. 563, 48 Am. St. Rep. 156 (Under landlord's control); Pike v. Britten, 71 Cal. 159, 60 Am. Rep. 527 (Control); Ellis v. Waldron, 19 R. I. 369; Olson v. Shultz, 67 Minn. 501; Wilber v. Fallausbee, 97 Wis. 581; Donohue v. Kendall, 50 N.Y.S. 386 (One step gone); Meyer v. Miller, 51 N.Y.S. 516. (Hole in mat); Walton v. Kane, 4 Misc. (N. Y.) 296; Feinstein v. Jacobs, 15 Misc. (N. Y.) 474 (Broken stairstep); Kenny v. Rhinelander, 28 A.D. 246, s. c., 163 N.Y. 576 (Torn stair carpet); Henkel v. Murr, 31 Hun (N. Y.) 28 (Dangerous oil cloth); Bruger v. Buchtenkirch, 29 A.D. 342; Alperin v. Earle, 55 Hun (N. Y.) 211; Canavan v. Stuyvesant, 7 Misc. (N. Y.) 113; Blake v. Fox, 17 N.Y.S. 508 (Hoisting apparatus); Griffen v. Manice, 47 A.D. 70 (Elevator case); Wasson v. Pettit, 49 Hun (N Y.) 166; O'Neill v. Kinken, 8 N.Y.S. 554 (Rotten banister); Harkin v. Crumbie, 14 Misc. (N. Y.) 439; Schmidt v. Cook, 12 Misc. (N. Y.) 449; Brady v. Valentine, 3 Misc. (N. Y.) 20 (Breaking of step); McGuire v. Joslyn, 10 N.Y.S. 384 (Ragged matting); Mally v. Asso., 13 Misc. (N. Y.) 496; Lichtig v. Poundt, 23 Misc. (N Y.) 632 (Roof of, extension); Dawson v. Sloan, 49 N.Y.S. 304, s. c., 100 N.Y. 620 (Elevator case); Rouillon v. Wilson, 29 N. Y. App. 307 (Rotten slats); Nadel v. Fichten, 34 A.D. 188 (Defective stairway); Akern v. Steele, 1 N.Y.S. 359; Tullman v. Murphy, 120 N.Y. 352; Tousey v Roberts, 53 N.Y.S. 446; Hungerford v. Bent, 55 Hun 3 (Hoisting apparatus); Victory v. Foran, 4 N.Y.S. 392; Jennings v. Shack, (N. Y.) 15 N.E. 424; Fitch v. Amour, 14 N.Y.S. 319.
Cook & Gossett for respondent.
The court did not err in sustaining the demurrer to the evidence or in overruling the motion to set aside the non-suit. (1) The lessee (and his family) takes the leased premises in the condition as they are when rented and the landlord, in the absence of express agreement so to do, is not bound to change construction of or to repair buildings. And this is the rule whether the tenant rents all of the buildings or only a part and uses parts of the premises in common with other tenants. This is well-settled law in Missouri and is in accordance with the weight of authority in this country. 2 Wood, Landlord and Tenant (2 Ed.), 870, par. 381; Ward v. Fagin, 101 Mo. 669; reversing same case 28 Mo.App. 116; Gordon v. Pelzer, 56 Mo.App. 602; Eyre v. Jordan, 111 Mo. 424; Purcell v. English, 86 Ind. 34; Cole v. McKey, 66 Wis. 500; Dowling v. Nuebling, 97 Wis. 350; Hanly v. Banks, 6 Okla. 79; Krueger v. Ferrant, 29 Minn 385; Towne v. Thompson, 68 N.H. 317; Loupe v. Wood, 51 Cal. 586. Members of his family in this respect have same status and no greater rights than lessee himself. Patterson v. Smart, 70 Mo. 38; Ward v. McAdaras, 28 Mo.App. 332; Doyle v. Railroad, 147 U.S. 413. (2) If a tenant or member of his family is injured while putting a common part of a building to a use other than such part is intended for, the landlord is not liable for such injury, even though he were bound to repair. As a matter of law, even in furnished-room houses, hotels and office buildings where light, heat, elevator and janitor service are to be provided by the landlord, such portions of the building as common stairways and elevators are not built, provided, intended or in fact ordinarily used for holding thereon family luncheon parties. Wholey v. Kane, 44 N.Y.S. 649; 16 App.Div. Rep. 166; Hart v. Cole, 156 Mass. 475; McAlpin v. Powell, 70 N.Y. 126; Borney v. Railroad, 126 Mo. 392; White v. Stifel, 126 Mo. 295.
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 for 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 sixteen 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.
I. 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...
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