Ward v. Fagin

• Decision Date: 01 December 1890
• Citation: 14 S.W. 738,101 Mo. 669
• Parties: Ward et al. v. Fagin, Appellant
• Court: Missouri Supreme Court

14 S.W. 738

101 Mo. 669

Ward et al. v. Fagin, Appellant

Supreme Court of Missouri

December 1, 1890

Appeal from St. Louis City Circuit Court. -- Hon. Shepard Barclay Judge.

Reversed.

Rochester Ford for appellant.

The third instruction given for plaintiffs was erroneous for the following reasons: (1) Between landlord and tenant there is no implied covenant on the part of the landlord that the premises are fit for the particular use which the tenant intends to make of them, or that the building will endure during the entire term. In the absence of a covenant, the landlord is not bound to keep the rented premises in repair and is not liable for an injury to tenant due to non-repair. Peterson v. Smart, 70 Mo. 38; Morse v Maddox, 17 Mo. 573; Brewster v. DeFremery, 33 Cal. 341; Ryan v. Dockery, 23 Mo.App. 313. (2) The wall which fell was not in the possession of the landlord, but was directly connected with the leased premises, so that for damages resulting from the fall of said wall defendant is not liable. Wood's Land. & Ten. [2 Ed.] 873; Humphrey v. Wait, 22 U. C. C. 580; Way v. Hedges, 9 Q. B. Div. 80; Purcell v. English, 86 Ind. 34; Krueger v. Ferrant, 29 Minn. 385; Peterson v. Smart, supra; Ryan v. Dockery, supra; Joyce v. DeGiverville, 2 Mo.App. 596; Brewster v. DeFremery, supra; Sherwood v. Seaman, 2 Bosw. 132; Witte v. Quinn, 38 Mo.App. 681. (3) In the absence of a covenant on the part of the landlord, he is liable to the tenant for misfeasance only, and not for nonfeasance, or for the acts of a third person. Morse v. Maddox, supra; Watkins v. Goodall, 138 Mass. 533; Taylor's Land. & Ten. [8 Ed.] 185a. (4) The condition of the wall was known to plaintiffs as fully as to defendant, and, if plaintiffs remained with full notice and knowledge of all the facts, they cannot recover. (5) The court erred in refusing defendant's fourth instruction.

J. L. Hornsby and J. W. Riddle for respondents.

(1) The possession of common passageways, common stairways, roofs and walls of buildings, in which the several parts are let to different tenants, is still in the landlord, to the extent that, as between him and his tenants, he is bound to keep the same in repair. Where a portion of a building is let, and the tenant has the right of passageway over staircases and entries in common with the landlord and other tenants, all that portion of the building not expressly let is 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 tenants of his building. Looney v. McLean, 129 Mass. 33; Priest v. Nichols, 116 Mass. 401; Watkins v. Goodall, 138 Mass. 533; Stockwell v. Hunter, 11 Met. 448-455, et seq.; Milford v. Holbrook, 9 Allen, 17; Toole v. Beckett, 67 Me. 544; Eagle v. Swayze, 2 Daly (N. Y.) 140; Bald v. O'Brien, 12 Daly, 160; Straub v. Soderer, 53 Mo. 38; Gilloon v. Reilly, 10 Cent. Rep. (N. J.) 428. (2) 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, secs. 383-384; Toole v. Beckett, 67 Me. 544; Looney v. McLean, supra, and other cases, supra. (3) 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, sec. 384; Toole v. Beckett, supra.

Sherwood J. Barclay, J., not sitting.

OPINION

Sherwood, J.

-- 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 a subtenant to recover from a lessee (his lessor) of certain property damages for injury to said subtenant's 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, seven and one-half 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 two and one-half feet into said alley and striking an unknown sewer.

The only allegation of negligence is that the defendant knowingly and wilfully 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 twelve dollars 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 two hundred and fifty dollars; 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; and that there was an alley, seven feet and a half 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 the 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 defendants and as such in possession of a room in the building, 812 Olive street, using the same as a sample or storeroom, 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 that it would not have fallen had defendant...