Ward v. Fagan

• Decision Date: 22 November 1887
• Parties: G. W. WARD ET AL., Respondents, v. A. W. FAGAN, Appellant.
• Court: Missouri Court of Appeals

28 Mo.App. 116

G. W. WARD ET AL., Respondents, v. A. W. FAGAN, Appellant.

Court of Appeals of Missouri, St. Louis.

November 22, 1887

APPEAL from the St. Louis Circuit Court, SHEPARD BARCLAY, Judge.

Certified to the Supreme Court.

FORD & PAYNE, for the appellant: As between landlord and tenant, there is no implied obligation on the part of the landlord that the property is in a safe condition. 1 Taylor's Landlord & Tenant [8 Ed.] sect. 382; Moak's Underhill on Torts, 248, and cases cited. Vai v. Weld, 17 Mo. 232; Peterson v. Smart, 70 Mo 34, 38; Rogan v. Dockery, 23 Mo.App. 313; 1 Thompson on Negligence, p. 323, sect. 3; Davis, Adm'r, v Smith, 15 Mo. 467. If the premises are in good order when demised, but afterwards become dangerous, a lessee out of possession, who has sublet to another in possession, is not liable for injury to the subtenant's property resulting from a neglect to keep them in repair, even though such lessee covenanted with his landlord to make all ordinary repairs. Moak's Underhill on Torts, 256, and cases cited. No action in favor of a tenant can arise from a non-feasance of his landlord in relation to the property demised, unless such landlord has expressly covenanted with the tenant against such non-feasance. 1 Taylor's Landlord and Tenant [8 Ed.] sects. 175 a, 329, and cases cited; Morse v. Maddox, 17 Mo. 569; Rogan v. Dockery, 23 Mo.App. 313; Quay v. Lucas, 25 Mo.App. 4; Krueger v. Ferrant, 29 Minn. 385; 1 Thompson on Negligence, p. 323, sect. 4. The relation of a lessee to his subtenant is a purely contractual one, regarding the premises sublet; and any action by the subtenant against such lessee, except for a positive misfeasance by such lessee, must be founded on an express covenant. Wood's Landlord and Tenant, sect. 330, p. 545; Davis' Adm'r v. Smith, 15 Mo. 467; Gibson v. Perry, 29 Mo. 245. There was no evidence tending to show that the defendant knew the premises were in an unsafe condition in time to protect the same, and hence the court erred in giving the third instruction. Griffith v. Lewis, 17 Mo.App. 605, 611. The serving of the notice on Kernan & Faris was not notice to the defendant, nor was a copy of said notice competent evidence of its contents. Griffith v. Lewis, 17 Mo.App. 605, 609.

J. L. HORNSBY and JOHN W. RIDDLE, for the respondents: Where a portion of a building is let to a tenant, all those portions of the building that are not expressly let, such as common passage-ways, staircases, roofs, and outside walls, are under the control of the landlord, and he is bound to keep the same in repair; as to such portion he still retains the responsibility of general owner to all persons, including the tenant of his building. Looney v. McLean, 129 Mass. 33; Stockwell v. Hunter, 11 Met. 448; Pevey v. Skinner, 116 Mass. 129; Taylor on Landlord and Tenant, sect. 175 a, note 4. Where a landlord retains possession of part of a building, he is bound to keep the part retained by him in proper repair and condition, so that the tenant will not, through the landlord's fault or negligence, be damaged or injured, either in his person or goods. Wood on Landlord and Tenant, sects. 383-384; Toole v. Beckett, 67 Me. 544; Looney v. McLean, 129 Mass. 33. In all such cases, the landlord's liability grows out of the fact that he impliedly covenants not to do any act that will render the demised premises untenable, and to so exercise his control over the parts of the premises retained by him as to inflict no injury upon his tenants. Wood on Landlord and Tenant, sect. 384; Toole v. Beckett, 67 Me. 544.

OPINION

ROMBAUER J.

The defendant was the lessee of a certain building, and sublet one room therein to the plaintiffs, who, at the date of the grievance hereinafter stated, occupied it as a sample-room for their wares. This room was separated by a hall, or passage-way, from the western main wall of the building. In June, 1886, this main wall fell, owing to an excavation made in its vicinity by an adjoining proprietor, and by its fall caused damages to the plaintiffs' wares and property within the room leased by them. The plaintiffs thereupon brought the present action against the defendant, before a justice of the peace, and, upon its retrial in the circuit court, recovered a judgment which is fully justified in amount if otherwise correct. The defendant appeals.

It may be conceded at the outset that if the plaintiffs' action was based on any contract obligation on the part of the defendant, the recovery could not be upheld, as, between landlord and tenant, there is no implied obligation, on the part of the landlord, that the property let is in a safe condition when let, or that it will be kept by the landlord's repairs in a safe condition during the term of tenancy. Peterson v. Smart, 70 Mo. 38; Rogan v. Dockery, 23 Mo.App. 313; Joyce v. DeGiverville, 2 Mo.App. 596. The plaintiffs do not deny this proposition, but claim that the law has no application to a case like the one at bar, where the tenant is a lessee of only part of the premises, and where the injury complained of was owing to the defective condition, or non-repair of other parts of the structure, of which they had no possession or control, but which were in the exclusive possession of the landlord. This distinction is recognized in Massachusetts and Maine, and the tenant in the former state was permitted to recover for injuries sustained by the defect of a stairway used by him in common with the landlord and other tenants (Looney v. McLean, 129 Mass. 35), and in the other for damages caused to his goods in the lower story of a house by a leaky roof. Toole v. Beckett, 67 Me. 544. These cases proceed on the theory that, as to the portions of the building which remain in the landlord's exclusive possession, he retains the responsibilities of a general owner to all persons, including his tenants.

On the other hand, such responsibility to tenants is denied by very respectable authorities. In Krueger v. Ferrant (29 Minn. 389), a case almost identical in its facts with Toole v. Beckett, the authority of the latter case is denied, the court holding that there seems to be no sound reason why the rule, that there is no implied covenant on the part of the landlord to repair, should not extend in like manner to such portions of the premises which are not demised to the tenant, but which are necessary to his use or protection, as in the case of a common roof. So in Cole v. McKey (66 Wis. 509), and Purcell v. English (86 Ind. 34), the authority of the case in Looney v. McLean is denied, Judge Elliot, in a well-considered opinion, and upon a full review of the authorities, holding that the Massachusetts case is supported neither by decisions in other states nor by the decisions in the same state cited in the opinion in its support. To the same effect is Sherwood v. Seaman (2 Bosw. 132), where it was decided that a landlord, in the absence of an express covenant, is under no obligation to repair, or to do any act to protect his tenant from the consequences of the lawful acts of the owner of adjoining premises, in excavating them to such depth as would endanger the stability of the demised premises.

It is not questioned but that the owner of premises may become liable to a stranger under similar circumstances. That liability, however, as hereinafter stated, rests on a different principle.

While there are many cases in this state deciding the general proposition that a landlord is under no implied obligation to repair premises let, there is none deciding the exact point in controversy here. The nearest approach to it is in the case of Joyce v. DeGiverville (2 Mo.App. 596), where this court decided that the landlord is under no implied obligation to repair a privy in a tenement-house, the tenement-house being let to various tenants in separate portions, and the privy being used by them in common.

This being the state of the law, we are in the position of adjudging the case at bar on principle, so far as the same can be done, in harmony with other branches of the law on the same subject expressly decided by the Supreme Court and this court.

The owner's liability to third persons, for injuries received by the defective condition of premises, rests on the principle that each person is bound to so use his property as not to endanger, by the negligent use thereof, the person or property of another. Whether the negligence consists in the commission of an act, or the omission of an ordinary precaution, is immaterial. It must be borne in mind, however, that strangers occupy no contractual relation with the owner of the property, and are, therefore, powerless to protect themselves against his neglect by an express contract. It is, therefore, but just that such protection should be afforded to them by the implied condition which attaches to the tenure of all property.

The tenant, in that respect, occupies a different position. He stands in a contractual relation with his landlord. So far as he is concerned, one of the reasons of the rule falls away. He knows that, as to the premises occupied by him, the landlord is under no obligation to repair. Does he therefore, in relation to such part of the premises which, though not occupied by him, are yet essential to the enjoyment of the premises which are thus occupied by him, stand in the position of a tenant, or in that of a stranger? On the one hand, it may be said that it would be unreasonable (if not impracticable) to require that the tenant should repair such part of the premises as are under the exclusive control of the landlord. On the other hand, it may be said that such part of the premises, though not let, are essential to the enjoyment of those let and occupied by the tenant, and thus, incidentally, within...