Norris v. Walker

• Decision Date: 27 November 1937
• Citation: 110 S.W.2d 404,232 Mo.App. 645
• Parties: WINIFRED ANN NORRIS, BY LINCOLN D. NORRIS, NEXT FRIEND, APPELLANT, v. FRANK P. WALKER AND ETHEL M. WALKER, RESPONDENTS
• Court: Kansas Court of Appeals

110 S.W.2d 404

232 Mo.App. 645

WINIFRED ANN NORRIS, BY LINCOLN D. NORRIS, NEXT FRIEND, APPELLANT, v. FRANK P. WALKER AND ETHEL M. WALKER, RESPONDENTS

Court of Appeals of Missouri, Kansas City

November 27, 1937

Appeal from Circuit Court of Buchanan County.--Hon. Sam Wilcox Judge.

AFFIRMED.

Judgment affirmed.

Mayer Conkling & Sprague and Edw. B. Wilkinson for appellant.

Shultz & Owen for respondent.

SPERRY C. Campbell, C., concurs.

OPINION

SPERRY, C.

Winifred Ann Norris was plaintiff below and will be so designated this court. She was three and one-half years of age when the injury complained of herein was received. This suit was brought in her behalf by her father as next friend. Defendants below are the owners of an apartment house in St. Joseph, which was leased to the parents of plaintiff. The owners will be designated as defendants in this court.

The trial court sustained a demurrer to plaintiff's petition. She refused to plead further, whereupon judgment was entered against her. From this judgment plaintiff has appealed. Therefore the sole question involved here is whether plaintiff's petition stated a cause of action.

Plaintiff sued defendants for damages alleged to have been sustained when she fell from a landing adjacent to and used as an entrance to the second story apartment occupied by plaintiff and her parents. She alleges in her petition that this landing is reached by a stairway in the rear of and outside of the building; that when the parents of plaintiff were negotiating for the lease of the apartment they told defendants, verbally that they had a small child, three and one-half years of age, the plaintiff herein; that the stairway and landing and the balustrade at the outer edge of said stairway and landing were open and unguarded, except by an open and insufficient balustrade consisting of two rails or pieces of 2 x 4 lumber laid approximately parallel with said stairway and landing, one of said rails being approximately 18 inches above the floor of said stairway and landing and the other being approximately 18 inches above the first; that they told defendants that such a situation with reference to the stairway and landing rendered same at that time unsafe, perilous and dangerous for their said small child, this plaintiff, and that if this situation was not corrected plaintiff would be likely to fall therefrom and suffer serious injuries. She further alleged that defendants, in consideration of the agreement of plaintiff's parents to rent said apartment, and in contemplation of the possibility of plaintiff falling thru said open balustrade, agreed that, for the safety of plaintiff, they would enclose said open balustrade and enclose said open and insufficient guarded stairway and landing with wire or screening or other suitable material, in order that plaintiff might thereby be prevented from falling thru said balustrade and off of said balustrade and landing; and that, upon defendants so agreeing, plaintiff's parents agreed to and did become tenants from month to month in said premises and so remained at the time she received the injuries sued on; and that defendants retained control over said stairway and landing for the purpose of making the alterations therefore agreed upon. The petition then proceeds to set out that, altho often requested so to do, defendants thereafter negligently failed to enclose said stairway and landing as they had agreed to do, and that, as a direct result of defendant's negligence in failing to enclose said stairway and landing as heretofore stated, plaintiff fell off of said landing and struck a concrete walk some twelve feet beneath it, suffering serious and permanent injuries.

Defendants claim that they are not liable to respond in damages for a tort growing out of the violation of a contract; that they might, in this case, have been liable for any damages resulting from negligence on their part in the making of repairs or improvements had they attempted or assumed to make any. But they say they did not undertake to make any such repairs, alterations or improvements and that they are not so charged in the petition; nor, they say, are they charged therein with a negligent performance of a duty created by the relationship of landlord and tenant, but, are charged with a complete failure to perform an alleged specific contractual obligation.

"It is settled law in this state that an action lies upon a contract made by a defendant for the benefit of a plaintiff, altho plaintiff was not privy to the consideration. [Rogers et al. v. Gosnell, 58 Mo. 589, 590, and cases cited.] But to give a plaintiff the right to sue for the breach of a contract, the contract itself must be made for his benefit." [Markel v. The Western Union Telephone Company, 19 Mo.App. 80, l. c. 85 (K. C.); Marcheck v. Klute et al., 133 Mo.App. 280, 292, 113 S.W. 654.] The contract here pleaded was made for the specific benefit of plaintiff, and, therefore, she has a right to maintain this action if she has otherwise stated a cause of action.

If defendants had gratuitously assumed to make any repair, alteration or improvement on the stairway and landing, whether or not bound to do so by contract, common law, statute, or ordinance, they would be liable to respond in damages on account of any injuries received by plaintiff caused by the negligent doing of the thing which they so undertook to do. [Glenn v. Hill, 210 Mo. 291, l. c. 297, 298, and cases cited; Shaw v. Butterworth, 327 Mo. 622, l. c. 628, and authorities there cited; Finer v. Nichols (St. Louis), 138 S.W. 889, l. c. 891.]

Is it the law that a landlord may contract with his tenant to make certain designated improvements, receive a consideration therefor, and then wholly disregard his contractual obligation and yet escape liability for personal injuries resulting to beneficiary of the contract, even tho such beneficiary suffered the very injury, and from the very cause, which was discussed and contemplated by both contracting parties when the tenancy was agreed on? That is the question we are called upon to decide here, because that is the situation pleaded; and the facts pleaded are assumed to be true for the purposes of the demurrer filed herein.

In Degnan v. Doty (Mo.), 246 S.W. 922, l. c. 925, Judge REEVES declared it to be the law: "If there is an agreement that the landlord will repair the premises and he breaches the contract, he is liable on the contract to the tenant in damages. [Dailey v. Vogl, 187 Mo.App. 261, 263, 173 S.W. 707; Kohnle v. Paxton, 268 Mo. 463, 188 S.W. 155; Peter Piper Tailoring Co. v. Dobbin, 192 S.W. 1044; McBride v. Gurney (Mo. App.), 185 S.W. 735; Marcheck v. Klute, 133 Mo.App. 280, 113 S.W. 654; Glenn v. Hill, 210 Mo. 291, 109 S.W. 27, 16 L.R.A. 699.] The court in that case merely reiterated a rule long established in this and other jurisdictions.

But general rules many times have important exceptions. For instance, another general rule declared in the case of Degnan v. Doty et al., supra, is to the effect that defendants' liability to a plaintiff can be no greater than his liability to the tenant himself. A child of tender years such as plaintiff in this case, cannot be guilty of contributory negligence, Shaw v. Butterworth, supra, whereas the tenant himself might be barred from recovery by reason of contributory negligence. It is also a general rule of law that no person except one who is a party to a contract or covenant may recover damages for its breach; but one for whose benefit the covenant was made is excepted. [Marcheck v. Klute, supra.] It is the contention of plaintiff that the rule declared in Dailey v. Vogl, supra, and in Degnan v. Doty, supra, has its exception in this case because defendants covenanted, for a valuable consideration, at the time of the making of the lease, to make certain improvements for her protection, and that the very purpose of the agreement was to prevent the exact event which happened; that prevention of personal injury to plaintiff in the manner in which it occurred was contemplated by all parties to the covenant at the time; and that defendants reserved the stairway and landing for the purpose of making the improvements, granting the tenants only the right to use same pending improvements.

There is much authority to support this theory. In Shearman & Redfield on the Law of Negligence (6 Ed.), vol. 3, pages 1860 to 1864, it is said that, where there is a covenant on the part of the landlord to make certain needed repairs and he fails to make them in reasonable time after due notice, and where personal injuries result therefrom to a tenant or those privy to the contract, the very nature of the covenant is such as to create an anticipation that the neglect to perform the agreement will result in personal injuries to the tenant, his guests, family, and servants. That authority cites a number of Missouri cases which, the author states, hold to that effect.

In the case of Collins v. Fillingham, 108 S.W. 616, l. c 618, the St. Louis Court of Appeals, on the authority of 1 Wood on Landlord and Tenant, pp. 790-791, in a case where plaintiff's evidence showed that her mother, a woman with several small children including plaintiff, rented a second story apartment which was reached by an outside stairway, landing on a porch upon which the apartment opened, the porch...