Wilt v. Coughlin
| Decision Date | 11 December 1913 |
| Parties | CLINTON WILT, Respondent, v. MARGARET COUGHLIN, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Greene County Circuit Court.--Hon. Guy D. Kirby, Judge.
REVERSED AND REMANDED (with directions).
Wright Brothers for appellant.
(1) Defendant was not required to place the yard in a condition of safety for horses. Marchek v. Klute, 133 Mo.App 280, 290; Korach v. Loeffel, 168 Mo.App. 421; Glaser v. Rothchild, 106 Mo.App. 418. (2) In the absence of an express warranty that the desired premises are in good repair or fit for a particular use, the law does not imply such a warranty. Burns v. Fuchs, 28 Mo.App 279, 281; Ward v. Fagan, 28 Mo.App. 116, 119; Doyle v. Railroad, 147 U.S. 413, 429; Doyle v Railroad, 147 U.S. 413, 424.
No brief for respondent.
This action was instituted in a justice's court, where the plaintiff prevailed. On trial anew in the circuit court the defendant was given the verdict. Plaintiff, however, was successful in having his motion for a new trial sustained and in obtaining an order setting aside the judgment which had been rendered on the verdict. The appeal by defendant is from the refusal of the trial court to set aside its order granting a new trial.
The reason specified by the trial judge for granting plaintiff a new trial was that the verdict was against the instructions of the court and the weight of the evidence.
At the close of the plaintiff's evidence, defendant requested and the court refused to give an instruction in the nature of a demurrer to the evidence, and at the close of all the evidence the court likewise refused defendant's request for a directed verdict. As we are of the opinion that the trial court erred in refusing to take the case from the jury, it will be necessary to consider the facts in the light most favorable to the plaintiff.
The plaintiff in April 1908 rented of the defendant a cottage fronting east on Campbell street which runs north and south in the city of Springfield. On the rear end of the lot, which was about fifty feet in width, was a barn some forty feet in length and sixteen feet in width, the length of the barn running north and south. This barn was located sixty or seventy feet back of the rear end of the cottage. Some out-houses covered the remainder of the width of the lot. The record does not show the existence of any opening directly between the barn or barn lot and the front yard where the cottage stood.
Plaintiff testified that he and his wife rented this cottage, and that soon after doing so he spoke to the defendant about keeping his horses there, and that she informed him it would be all right if he so desired and would fix the barn at his own expense.
An alley runs along the outside of this lot back to the barn and barn lot. Dividing the yard from the alley, from the front of the yard back to the barn or barn lot, is a fence. On the side of the house, located some forty to sixty feet from the barn and barn lot, was a cesspool which had been covered by pine boards on top of which was earth. The cesspool was made when the house was completed and had been finished only a short time when plaintiff moved in the house. Plaintiff admits knowing the cesspool was there, but said he did not know the material used in covering the same.
On the sixth day of July, 1910, while plaintiff was residing at this place, he was awakened by hearing a noise in the side or front yard, and on making an examination found that one of his horses had broken through the top of the cesspool and fallen in. After several hours work plaintiff and others succeeded in getting the horse out. The testimony is convincing that the animal thereafter was of little value owing to the injuries received by the fall into the cesspool. The evidence shows that the planks which covered the cesspool showed deterioration and rot. It is unquestioned that the horse got on top of the cesspool and that the covering was of insufficient strength to withstand his weight.
Plaintiff charges the defendant with maintaining the cesspool in this condition with knowledge of its dangerous character, or that defendant by the exercise of ordinary care and prudence could have known its dangerous character.
Plaintiff testified that the night before the occurrence he went to the barn and saw that his horses-- this one in particular--were securely fastened in their stalls and in the stable. How this horse which was injured escaped from the stable and came to the cesspool no witness attempts to explain. Plaintiff, supported by the testimony of the defendant, states positively that at no time during the tenancy had the front yard been used by animals for grazing or to be in. The nearest part of the cesspool to the alley, along which plaintiff took his horses to and from the barn, was several feet therefrom; besides, there was a fence between the cesspool and the alley. The front yard had no fence dividing it from the street. The only fence mentioned in the record is that running from the street along the alley back to the barn, and this fence divided the alley from the front and side yard in which the cesspool stood. There is no testimony as to the existence of any gate or passageway from the barn lot to the front or side yard. Nor is there any testimony that any horses or stock of any kind had ever been permitted to be in the front or side yard where the cesspool was situated. No guard or fence was built around the cesspool so as to prevent persons or animals walking thereon. So far as the record shows, the only way this horse could have reached the place where the cesspool stood was to go down the alley to the street and come back into the front yard, or to go over some neighboring property and then into the front yard.
Under this state of facts we see no liability on the part of the defendant for this accident. And since the trial court in sustaining the motion for a new trial did so through a mistake in construing the law, it is our duty to reverse its order. [Barr v. Hays, 172 Mo.App. 591, 155 S.W. 1095.]
The action is founded on a tort, not on an express covenant to repair or to keep the premises in repair during the tenancy on the part of the landlord. The law is well settled in this State that in the absence of a covenant to repair, the landlord cannot be held liable in damages for failure to keep the premises in repair while in the tenant's possession. Nor is there an implied covenant that the premises are in good repair when they are let, the landlord being liable only for acts of misfeasance. [Roberts v. Cottey, 100 Mo.App. 500, 74 S.W. 886 and cases cited; Graff v. Brewing Co., 130 Mo.App. 618, 109 S.W. 1044, and cases cited; Marcheck v. Klute, 133 Mo.App. 280, 113 S.W. 654, and cases cited; Korach v. Loeffel, 168 Mo.App. 414, 151 S.W. 790, and cases cited.] The landlord, however, would be liable for injuries to the tenant or his property by reason of hidden dangers, provided the hidden danger in a given case is such that the injury which ensues by reason of its existence is the natural and probable consequence of allowing such dangerous condition to exist. And this is the turning point in the case at bar. The evidence clearly shows--giving the plaintiff the full benefit of all its weight and all inferences reasonably deducible--that it was never within the contemplation of the parties to the rental contract that that portion of the premises in which the cesspool stood would be subjected to the weight of a horse or that that part of the premises would be used by the tenant for horses to run on. Had the cesspool been located in the barn lot where horses could reasonably be expected to be kept, or had some member of the plaintiff's family in walking over the cesspool been injured by the breaking of the plank...
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