Ploen v. Staff

• Citation: 9 Mo.App. 309
• Parties: DORA PLOEN ET UX., Appellants, v. G. A. STAFF, Respondent.
• Decision Date: 26 October 1880
• Court: Court of Appeal of Missouri (US)

9 Mo.App. 309

DORA PLOEN ET UX., Appellants,

v.G. A. STAFF, Respondent.

St. Louis Court of Appeals, Missouri.

Oct. 26, 1880.

Where the tenant has not notified the landlord to repair, the latter is not liable, upon his covenant to repair, for injuries sustained by a stranger in consequence of a want of repair, while the latter is upon the premises by invitation of the tenant.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Affirmed.

FINKELNBURG & RASSIEUR and B. SCHNURMACHER, for the appellants: Where the owner covenants to keep the premises in repair, if he fails to do so he becomes liable, not only to his tenant for breach of contract, but to any third person who may be injured by reason of such defective repairs.-- Payne v. Rogers, 2 H. Black. 350; Lowell v. Spaulding, 4 Cush. 277; Leslie v. Pounds, 4 Taun. 649; Benson v. Suarez, 43 Barb. 408; Kastor v. Newhouse, 4 E. D. Smith, 20; Milford v. Holbrook, 9 Allen, 17; Gridley v. Bloomington, 68 Ill. 47; Bears v. Ambler, 9 Barr, 193.

LOUIS GOTTSCHALK, for the respondent, cited: Shearm. & Redf. on Neg. 597, sect. 502; Whart. on Neg., sects. 825, 831; Millon v. Morrill, 126 Mass. 545; Joyce v. De Giverville, 2 Mo. App. 596.BAKEWELL, J., delivered the opinion of the court.

The petition in this case sets forth that plaintiffs are husband and wife, and defendant the owner of certain premises in St. Louis, which he had rented to various tenants, each occupying a part thereof; that Jacob Stremmel was one of these tenants, occupying the room up-stairs; that defendant, as a part of his contracts with said tenants, “agreed to keep the said premises in repair and in a safe and serviceable condition; that on November 25, 1878, plaintiff Dora was lawfully upon said premises, at the invitation of said Stremmel, tenant and occupier thereof, and was using the same in a lawful manner; that while so upon said premises, a wooden step or stair, which the defendant was bound to keep in repair as aforesaid, belonging to and connected with said dwelling-house, was so negligently and imperfectly fastened that it broke and gave way beneath plaintiff, precipitating her to the ground, thereby injuring her arm and hand, and otherwise lacerating and bruising her person, and causing her great pain and anguish; that plaintiffs had no knowledge of the deficient repair of said stair or step prior to the time said injury occurred, and defendant was well aware of the loose and unsafe condition of said step or stair prior to said injury, and negligently permitted the same to remain in such unsafe condition.” The petition further states that the injury was caused by the negligence and carelessness of defendant in failing to keep said step in good repair, and allowing the same to fall into a ruinous and dangerous condition, and was not caused by any negligence of plaintiff. Damages are asked in the sum of $3,500. The answer is a general denial.

When the cause was called for trial and a jury empanelled, defendant objected to the introduction of any evidence, on the ground that no cause of action was set forth in the petition. The court sustained the objection, and plaintiff took a nonsuit, which the court afterwards refused to set aside.

We are of the opinion that the petition does not set forth facts sufficient to constitute a cause of action. Though the...