Ward v. Fagin

• Citation: 14 S.W. 738,101 Mo. 669
• Parties: WARD et al. v. FAGIN.
• Decision Date: 01 December 1890
• Court: United States State Supreme Court of Missouri

14 S.W. 738

101 Mo. 669

WARD et al. v. FAGIN.

Supreme Court of Missouri.

December 1, 1890.

LANDLORD AND TENANT — REPAIRS — FALLING WALL.

In the absence of covenants to repair, a landlord's duty to his tenant does not require that he should shore up a wall endangered by an excavation of the adjoining lot, although he has received due notice thereof, and he is not liable for an injury caused to the tenant's stock of goods by the falling of the wall in consequence of negligent excavation.

Appeal from St. Louis circuit court; SHEPARD, Judge.

This cause arose in a justice's court, was appealed to the circuit court, and from there to the St. Louis court of appeals, and from thence transferred to this court, under the provisions of the constitutional amendment of 1884. It is a suit by subtenants to recover from a lessee (their lessor) of certain property damages for injury to said subtenants' stock of goods situated in the room rented. The terms of the first lease are not alleged nor disclosed, but it appears from the evidence that there was a lot of ground on which the Odd-Fellows' Association was having an excavation made; that between said lot and plaintiffs' premises was an alley 7½ feet wide; that defendant had enjoined said Odd-Fellows' Association from interfering with said alley; and that the injury to plaintiffs' goods arose from said excavation being extended 2½ feet into said alley, and striking an unknown sewer. The only allegation of negligence is that the defendant knowingly and willfully permitted plaintiffs to remain in said premises while the same were in an unsafe condition; and the evidence shows that plaintiffs, when the accident happened, knew that said excavation was being made. The evidence for the plaintiffs was substantially as follows: Gus A. Ward, one of the plaintiffs, testified that plaintiffs were partners in the cigar and liquor business, and rented a room in the building (812 Olive street) of defendant for $12 per month; that on June 12, 1886, the west wall of said building fell down, and caused the furniture and stock in plaintiffs' room to be damaged in the sum of $250; that he supposed the wall fell because of the excavation being made by the Odd-Fellows' Hall Association; that he did not know the building was unsafe, but knew an excavation was being made for the Odd-Fellows' Association. Richard Brown testified that he was the contractor who made the excavation for the Odd-Fellows' Hall Association; that there was an alley 7½ feet wide between defendant's building and the property of the association; that defendant spoke to him of some notice which he had received regarding the excavation, and told him that he had put Mr. Clark, defendant's son-in-law, in charge of the property; that there was quite a bank of earth on defendant's side of alley; that Mr. Clark tried to engage witness to remove said earth, but defendant had enjoined witness from interfering with said alley; that the wall which fell was built separate and apart from the main building, with a stairway between, and was built over a sewer, and, when witness dug below said sewer, the water seeped out and caused the wall to fall; that witness put the footings for the building of the association two feet and seven inches in the alley. The witness also testified that he and his son made the excavation for the association, and that, if the excavation had not been made, the wall would not have fallen. There was also other testimony from another witness of a similar import as to the cause of the fall of the wall. It was shown also that the defendant's agents had received notice in March, 1886, from the Odd-Fellows' Hall Association that they would immediately proceed to excavate their ground situate just across the alley from the property leased by defendant. Among other instructions, the court gave this one on behalf of the plaintiffs: "If you find from the evidence that on June 12, 1886, plaintiffs were tenants of defendant, and as such in possession of a room in the building 812 Olive street, using the same as a sample or store room; and that defendant, after having been notified of the intended excavation near said building before said date, failed and omitted to shore up or protect said building; and that, because of such omission, the said building fell; and...