T. L. Horn Trunk Co. v. Delano

• Decision Date: 09 January 1912
• Citation: 142 S.W. 770,162 Mo. App. 402
• Parties: T. L. HORN TRUNK CO. v. DELANO.
• Court: Missouri Court of Appeals

142 S.W. 770

162 Mo. App. 402

T. L. HORN TRUNK CO. v. DELANO.

St. Louis Court of Appeals. Missouri.

January 9, 1912.

1. LANDLORD AND TENANT (§ 166) — PREMISES— REPAIRS—LIABILITY OF LANDLORD.

A landlord is liable for injuries to property caused by his failure to repair any part of the

premises which is reserved by him for the use of all the tenants in his building.

2. EXECUTORS AND ADMINISTRATORS (§ 119) — MANAGEMENT OF ESTATE — REAL PROPERTY.

An administratrix, in accordance with an order of the probate court made under Rev. St. 1909, § 139, providing that no administrator except one acting under an order of the probate court shall rent or control real estate of deceased, rented three store buildings which belonged to the intestate for the payment of his debts. Upon the roof of these buildings there was a water tank, which was for the protection of them all and was not leased to any particular tenant. Held that, despite section 140, providing that, when any realty of a decedent needs repairs, the court may on the application of any person interested order the administrator to make the necessary repairs whenever it can be done without prejudice to creditors, the administratrix, having taken control of the premises and reserved the water tank, was individually liable for her failure to repair the water tank, which she knew was unsafe, even though no order of the probate court had been made.

3. APPEAL AND ERROR (§ 1149)—MODIFICATION—CORRECTION OF JUDGMENT.

Where an administratrix was individually liable for her failure to repair the premises of her intestate which she had leased, and an action against her as administratrix, culminating in a judgment against the estate of her intestate, was had, the error in the judgment cannot be overcome by a mere correction or substitution of parties, for a litigant is entitled to be sued in his own proper person, and not as some one else.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by the T. L. Horn Trunk Company against Augusta N. Delano, administratrix of August Nedderhut, deceased. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This is an action to recover from the defendant, as administratrix, money, by way of damages, growing out of the alleged negligence of defendant in failing to keep in repair a large water tank over which, it is alleged, the administratrix had control. The court rendered judgment "that the plaintiff have and recover of the estate of August Nedderhut, deceased, in the hands of Augusta N. Delano, administratrix of said estate, the damages aforesaid as assessed, to wit, said sum of $2,500, together with its costs and charges herein expended, and that a copy of this judgment be certified to the probate court of the city of St. Louis." After unsuccessfully moving for a new trial and in arrest, the defendant has appealed.

August Nedderhut having died, and the defendant Augusta N. Delano having been appointed his administratrix, the probate court having jurisdiction made an order of record requiring her to take possession of and rent the real estate of the deceased for the payment of debts. Pursuant to such order, the defendant took possession of three four-story buildings of the deceased on Main street in the city of St. Louis, and leased two of them, 301 and 303 South Main street, to the plaintiff, and the third, 305 South Main street, to another tenant. At the time of such leasings, there was a large wooden water tank on the top of said buildings used for furnishing water to the fire extinguisher system and for other purposes in each of said three buildings. Said water tank rested one-half on the building 303 South Main street, which was leased to the plaintiff, and one-half on the building 305 South Main street, which was rented to the other tenant.

The evidence tends to establish that certain defects in the water tank were not repaired by the defendant within a reasonable time after she had knowledge of them, and, by reason of such defects not being repaired, the tank burst, and its contents, an immense volume of water, deluged plaintiff's demised...