Peterson v. Smart
Decision Date | 31 October 1879 |
Citation | 70 Mo. 34 |
Parties | PETERSON, by next friend, v. SMART, Appellant. |
Court | Missouri Supreme Court |
Appeal from Jackson Special Law and Equity Court.--HON. R. E. COWAN, Judge.
REVERSED.
J. K. Sheeley and J. Brumback for appellant.
Appellant was not liable to his tenants, or to any one coming in under them, for the condition of the premises, or for their being tenantable or safe for use for the purpose for which they were apparently intended or leased. Davis v. Smith, 15 Mo. 468; Vai v. Weld, 17 Mo. 232; Morse v. Maddox, 17 Mo. 573; Taylor Land. & Ten. (4 Ed.) § 327; Cleves v. Willoughby, 7 Hill (N. Y.) 83.
2. There was no duty on appellant to repair or improve the premises to prevent or protect respondent from falling into the street. Jaffe v. Harteau, 56 N. Y. 398; Burdick v. Cheadle, 26 Ohio St. 393; Flynn v. Hatton, 4 Daly 552; Wharton's Law of Neg., (1 Ed.) § 421; O'Brien v. Capwell, 59 Barb. 497; Gott v. Gaudy, 2 Ellis & Black. 847; 22 Eng. L. & Eq. 173; Straub v. Soderer, 53 Mo. 38; Bigelow's Lead. Cas. Law of Torts, 654.
3. Respondent was on the property in Spenser's term and before the fence was removed, but all rights, duties and liabilities existing in and arising out of relations during that term, ended with it, as between the parties hereto, unless a cause of action had accrued to respondent before such termination, which was not the case.
Thomson & Kagy for respondent.
1. It is conceded that in the absence of any agreement to that effect, there is, as between him and the tenant, no obligation on the part of the landlord to repair. But we are unable to discover that this doctrine of repairs has any application to the case. The fence did not fall to pieces by decay, nor was it removed or destroyed by any of the forces of nature, or by the act of the tenant or a stranger. Smart removed it himself, uncovering and exposing a dangerous excavation upon the premises; and his liability does not, as we conceive, rest upon any obligation to repair, but upon a duty which the law imposed upon him, after having produced the danger, to do what was reasonably necessary to prevent injury from it. In re Williams v. Groucott, 4 Best & Smith 149; Ancaster v. Milling, 2 Dowl. & Ry. 714; 2 Hilliard on Torts, (3 Ed.) 586.
2. The courts have held parties liable for the results of such negligence as this, not only when the injuries were not and could not have been anticipated, but even where the parties injured were trespassers. Railroad Co. v. Stout, 17 Wall. 657; Birge v. Gardiner, 19 Conn. 507; Lynch v. Nurdin, 1 Ad. & El. (N. S.) 28; Walsh v. Miss. Transportation Co., 52 Mo. 434; Brown v. H. & St. Jo. R. R. Co., 50 Mo. 461.
If replacing the fence were embraced in the agreement between Larson and Smart, as to repairs which Larson might make, then the failure to replace it was the neglect of Larson, if neglect be imputable to any one, and not to Smart. If it was not embraced in that agreement, then Smart was under no obligation to Larson, direct or indirect, to rebuild the fence, and if not to Larson, neither to his sub-tenant, betwixt whom and Smart there was no privity whatever. Peterson was a stranger on the premises, as to Smart, and was there, not on his invitation or by his permission, but on the invitation and by the permission of Larson. If Larson, knowing that the fence was down, went into possession under an agreement in which there was no obligation of Smart to repair the premises, and one of his...
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