Meade v. Montrose
| Decision Date | 30 June 1913 |
| Citation | 160 S.W. 11,173 Mo.App. 722 |
| Parties | JAMES F. MEADE, Respondent. v. STEPHEN V. MONTROSE, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court,--Hon. W. O. Thomas, Judge.
REVERSED.
Judgment reversed.
Sparrow Page & Rea for appellant.
Edward J. White, H. H. McCluer and Omar E. Robinson for respondent.
Appellant is the owner of a building which he erected and rented to a tenant for a garage. Respondent placed his new automobile in this garage to be cared for by the tenant for hire. Plaintiff claims that in the erection of the building the flat roof thereof was not made strong enough, and no sufficient outlet for rainwater falling thereon was provided. During a rain, the water collected on the roof in such quantities that its weight, together with the insufficient supports to the roof, caused one of them at the rear end of the building to give way, allowing that portion of roof supported by it to fall, damaging respondent's automobile, for which damage this suit is brought. The basis of the suit is the negligent, unsafe and dangerous manner in which appellant built the roof, in that he failed to support it with materials of sufficient strength or number, and built it of poor materials, and so constructed the roof as to cause water from ordinary rainfalls to accumulate and remain thereon, by reason of all which the roof fell. The answer contained a general denial and set up that the rain in question was of such an unusual character as to constitute what is to some minds irreverently termed an "Act of God." The reply denied this and there was no proof thereof. The jury returned a verdict for $ 425 in favor of respondent.
Appellant insists that, under the facts shown, there is no liability upon him to respondent. In order to properly determine this question we must bear in mind not only the nature and basis of the suit, but also the position and relation sustained by plaintiff to defendant. The suit is one based on negligence, that is, want of ordinary care in the erection of the building. The position occupied by plaintiff is that of a guest, licensee, or customer of defendant's tenant, a man named Flack. There is no privity of relation or contract existing between defendant and plaintiff. The former leased the building to Flack with no representation or warranty that the building was safe nor clause agreeing to keep it in repair.
Whether a landlord is liable for an injury to a third person caused by a defect in the demised premises depends, sometimes, on what the landlord has agreed or undertaken to do in his dealings with his tenant, and sometimes on the status of such third person. If such third person is a stranger to both the landlord and the tenant, for instance, an adjacent or near by dweller or property owner, or a passer-by on the adjoining highway, then both landlord and tenant may be liable to him for injuries caused by the defective condition of the building. But if the injured person is one who sustains only a private contractual relation with the tenant, and is injured only by being on the premises by reason of that relation, such as a servant, invited guests, licensee or customer of the tenant, then his right to recover damages is ordinarily limited to the tenant, and only within certain narrow limits can that right extend beyond the tenant to the landlord. In such case the rights possessed by the injured person are not those given him by law as a member of the general public, but are those, and only those, accruing to him by virtue of his contract with the tenant. When this is the case, he has no greater rights against the landlord than the tenant has. [Peterson v. Smart, 70 Mo. 34; Burdick v. Cheadle, 26 Ohio St. 393, 20 Am. St. Rep. 767.]
In the case now before us, the landlord had not agreed or undertaken to do anything with regard to the premises, so that feature of the case is eliminated; and, therefore, all cases in which the landlord in the lease either warranted or represented the premises to be in good condition, or agreed to keep them in repair and failed to do so, or undertook to repair them and did so negligently, are not applicable to the question here presented. Such cases are La Brasca v. Hinchman, 79 A. 885, where the landlord undertook to make repairs but made them negligently; Meyers v. Russell, 124 Mo.App. 317, 101 S.W. 606; Shute v. Bills, 191 Mass. 433, 437, 78 N.E. 96; Barman v. Spencer, 49 N.E. 9. In the cases where the landlord undertook to repair, he is liable for negligence in doing so as for any other negligent act on his part resulting in injury to another. [1 Tiffany on Landlord and Tenant 660.]
Also, in the case before us, it must be remembered that the plaintiff is not a stranger, such as an adjacent property owner, or passerby on the sidewalk, deriving his rights, by operation of law, from his position as a member of the general public. Consequently the cases wherein a landlord has been held liable to a stranger are not in point. Such cases are Stoetzele v. Swearingen, 90 Mo.App. 588; Gordon v. Peltzer, 56 Mo.App. 599; Hilmes v. Jaidin, 53 Ind. 21; Pickard v. Collins, 23 Barb. 444.
We come then to the question of defendant's liability within the precise limits presented by the facts in this case. The authorities are generally agreed that, in the absence of any representation or agreement to the contrary, there is no implied obligation or warranty on the part of the landlord to the tenant that the premises are habitable or fit for the use to which the tenant intends to put them. [1 Tiffany on L. & T. p. 556; McKenzie v. Cheetham, 83 Me. 543, 22 A. 469; Jaffe v. Harteau, 56 N.Y. 398; Burdick v. Cheadle, 26 Ohio St. 393; Towne v. Thompson, 68 N.H. 317, 44 A. 492; Hart v. Windsor, 12 Mees & W. 68; O'Brien v. Campbell, 59 Barb. 497; Cowen v. Sunderland, 145 Mass. 363, l. c. 364; Dyer v. Robinson, 110 F. 99; Grant v. Tomlinson, 138 Mo.App. 222, 119 S.W. 1079.] It follows from the above rule, and it is established by the authorities cited and others, that the lessee cannot assert a claim for damages against the lessor on account of the condition of the premises at the time of the demise. [1 Tiffany on L. & T. 559 and cases cited.] This rule, however, is subject to an exception that, if there is some hidden defect known to the lessor at the time of making the lease, but which is not apparent to the intending lessee, the lessor is bound to inform the latter thereof, and if he fails to do so, he is liable to the tenant for injuries arising therefrom. [1 Tiffany on L. & T. 562 and cases cited.]
The same rules apply to persons other than the tenant rightfully on the premises by the tenant's request or permission. In every such case the landlord is liable in so far as he would be liable to the tenant, but no further. [1 Tiffany on L. &. T. 649.] And as regards defects existing at the time of the lease, the general rule is that the landlord is not liable for injuries to the person or property of any person who may thereafter be on the premises. [1 Tiffany on L. & T. 649 and cases cited supra.] The same exception to this rule exists as to hidden or concealed defects or dangerous conditions existing at the time of the lease. But, in order to make the landlord liable for such hidden defects under such exception, it must be shown that they were known to him, or that they were those the existence of which he had reasonable grounds to suspect. [1 Tiffany on L. & T. 651-2.] The statement contained in this last clause does not mean that if the landlord has no reason to suspect concealed defects or dangers, nevertheless he must make an examination in an effort to discover them, or else he will be held liable. It only means that if he had reason to suspect their existence, and did not exercise reasonable diligence to satisfy himself of their nonexistence before leasing without mentioning the matter to his tenant, he will be liable. [1 Tiffany on L. & T. 567.] So that the proper statement of the rule is that the landlord will not be liable for concealed defects or dangerous conditions existing at the time of the demise unless he knew of the defects or had knowledge of facts from which he ought to have known, or will be presumed to have known, of them.
Were the defects in the building in the case at bar concealed defects, and if so, did the defendant know of them or have knowledge of such facts as that he must be presumed to have known them?
In the first place it would seem from the testimony, though this is not perhaps very clear, that the supports for the roof could be seen by anyone entering the building. The roof is described as resting upon these wooden supports, their number and distance apart are given, and...
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