Whiteley v. McLaughlin

• Decision Date: 20 June 1904
• Citation: 81 S.W. 1094,183 Mo. 160
• Parties: WHITELEY, Appellant, v. McLAUGHLIN
• Court: Missouri Supreme Court

81 S.W. 1094

183 Mo. 160

WHITELEY, Appellant, v. McLAUGHLIN

Supreme Court of Missouri, First Division

June 20, 1904

Appeal from St. Louis City Circuit Court. -- Hon. William Zachritz Judge.

Affirmed.

Paxson & Clark for appellant.

Plaintiff was seriously and permanently injured by the gross negligence of some one. Whose negligence was it, and is he legally liable for the injuries? The textbooks give these rules, as deduced from the decisions, as to the landlord's liability to third persons where the defect amounts to a nuisance: "Where premises are out of repair at the time of the letting, in particulars which the landlord is bound as regards third persons, not to allow, the landlord is liable for any injuries sustained by a third person from such want of repair. The reason for this rule seems to be that in such a case the dangerous condition of the premises constitutes a nuisance, and the liability of the landlord results from his leasing premises upon which a nuisance exists." 18 Am. and Eng. Ency. of Law (2 Ed.), pp. 239 244; Gordon v. Peltzer, 56 Mo.App. 603; Tate v. Railroad, 64 Mo. 155; Thum v. Rhodes, 12 Colo.App. 245; Willcox v. Hines, 100 Tenn. 538; Hines v. Willcox, 96 Tenn. 148, 54 Am. St. Rep. 823; Griffith v. Lewis, 17 Mo.App. 612; Imp. Co. v. Sipp, 14 Ky. Law Rep. 924; Carson v. Godley, 26 Pa. St. 116 (67 Am. Dec. 406); Wunder v. McLean, 134 Pa. St. 334, 19 Am. St. Rep. 702; Martin v. Richards, 155 Mass. 386.

Rassieur & Rassieur for respondent.

In the absence of an express warranty against defects, or agreement to repair, or fraud or active concealment on the part of the landlord, the tenant can not recover against him for injuries caused by the defective condition of the demised premises. The same rule applies when the injuries are sustained by a member of the tenant's family. Negligence on the part of the landlord to discover the defect is not sufficient to make a case. 18 Am. and Eng. Ency. Law, p. 215; Taylor on Landlord and Tenant, sec. 175a; Eyre v. Jordan, 111 Mo. 424; Peterson v. Smart, 70 Mo. 34; Rogan v. Dockery, 23 Mo.App. 313; Roberts v. Cotty, 100 Mo.App. 500; Jaffe v. Harteau, 56 N.Y. 398; Towne v. Thompson, 68 N.H. 317, 46 L. R. A. 748; Gallagher v. Button, 73 Conn. 172; Smith v. State (Md.), 51 L. R. A. 772.

OPINION

VALLIANT, J.

Plaintiff lived with her husband in a house which he rented as a residence for his family from defendant. At the rear of the house was a porch, the floor of which was six or eight feet above the level of the ground; it was enclosed by a banister or railing attached to perpendicular posts. Plaintiff having occasion to be on the porch, leaned gently against the railing, when it broke, and she fell to the ground and received severe injuries. This suit is to recover damages for those injuries.

The petition alleges that it was a comparatively new frame house and to all outward appearances safely and securely built, but that in point of fact the railing which broke was not securely fastened, it was attached at one end to the post with six small nails measuring from a half inch to an inch in length, the heads of which were covered with putty and paint so as to entirely conceal them from view and the other end was not fastened at all; that plaintiff and her husband did not know the insecure condition of the railing "and there was no means of ascertaining said insecurity without destroying said railing;" that the defect was in the original construction of the porch "which was constructed by the defendant himself and under his own immediate supervision," and the defect was known to the defendant at the time he rented the house to her husband, but he concealed the fact from them; that at the time she received the injury she was acting carefully and "was relying upon the apparent security and safety of said porch and railing."

The answer was a general denial.

The plaintiff's testimony tended to prove the allegations of her petition except the allegations that the house was built by the defendant himself and under his immediate supervision, and that at the time he rented the house he knew the defective condition of the fastening of the railing and concealed it. On these points the evidence showed that this was one of five small houses in a row built by one of plaintiff's witnesses and his brother for the defendant; the witness and his brother were carpenters and builders, the defendant was a groceryman and saloon keeper; the witness superintended the building himself and the defendant was there all the time; but when the houses were built these back porches were not constructed; they were not called for in the plans and specifications, and were not added until two or three years after the houses had been built; witness did not build the porches and did not know who built them; there was no evidence to show who built them. One of plaintiff's witnesses who lived in another one of these houses testified that after the accident the defendant was "fixing around our porch and he made the remark that 'the damn bum carpenters, you couldn't depend on them unless you were right over them.' . . . There was something that wasn't properly done about the house or porch and he was kind of out of humor about having to fix so much around them. Q. During the conversation was there any reference made by either you or Mr. McLaughlin in reference to the Whiteley case? A. Yes, sir."

That is the evidence which the plaintiff thinks tends to prove that the defendant built the porches himself or that they were built under his eye and that he knew that this defect existed in the fastening of the railing which caused the plaintiff's mishap.

At the close of the plaintiff's case ...