Peterson v. Smart

• Decision Date: 31 October 1879
• Citation: 70 Mo. 34
• Parties: PETERSON, by next friend, v. SMART, Appellant.
• Court: Missouri Supreme Court

70 Mo. 34

PETERSON, by next friend,

v.SMART, Appellant.

Supreme Court of Missouri.

October Term, 1879.

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.

HENRY, J.

The defendant was the owner of a tenement house on McGee street, in Kansas City, and in the spring of 1871, leased it by the month to one Spenser, who, without the knowledge or consent of Smart, sub-let one room of the house to plaintiff's father. At the time there was a picket fence on the line of the lot fronting the street, which was removed by defendant while Spenser and plaintiff's father occupied the house. On that side of the lot there was a perpendicular descent of seven or eight feet from the lot to the sidewalk. There was evidence strongly tending to prove that in the spring of 1871 the fence was removed, and that after its removal Spenser quit the premises, which were, thereupon, leased by the defendant to one Larson, who, without the knowledge or consent of defendant, sublet one room of the house to Peterson, the father of the plaintiff. Defendant did not agree with Larson that he would make any repairs, but it was a verbal understanding between Larson and defendant that Larson might make any needed repairs, and that defendant would deduct the cost of such repairs from the rent. In October, 1871, some time after Larson went into possession of the premises, the plaintiff, then a child five or six years of age, with other children, was playing on that side of the lot from which the fence had been taken, and fell from the lot to the sidewalk, receiving severe injuries from the fall. For those injuries he sued defendant for damages, and in the Kansas City court of common pleas obtained judgment for $1,937, from which defendant has prosecuted this appeal

1. LANDLORD AND TENANT: landlord not liable to rebuild fence, when: damages.

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...