Wood v. Gabler

• Decision Date: 03 April 1934
• Docket Number: No. 22703.,22703.
• Parties: BENJAMIN A. WOOD, RESPONDENT, v. GEORGE C. GABLER, APPELLANT.
• Court: Missouri Court of Appeals

70 S.W.2d 110

BENJAMIN A. WOOD, RESPONDENT, v. GEORGE C. GABLER, APPELLANT.

No. 22703.

St. Louis Court of Appeals. Missouri.

Opinion filed April 3, 1934.

Appeal from Circuit Court of St. Louis County. — Hon. Jerry Mulloy, Judge.

REVERSED AND REMANDED.

Thompson, Mitchell, Thompson & Young and R. Forder Buckley for appellant.

(1) The trial court erred in denying to defendant the right to open and close. Smith v. Greenstone, 208 S.W. 628. (2) Demurrer ore tenus will not reach mere uncertainty or indefiniteness of averment, but only such objections as are necessarily and absolutely fatal to pleadings. State ex inf. Attorney-General v. Arkansas Lumber Company, 169 S.W. 145, 260 Mo. 212; Wilborn v. Desloge Consolidated Lead Co., 268 S.W. 655; Williams v. St. Louis-San Francisco Ry. Co., 7 S.W. (2d) 392; Karr & Conn v. Cade School Co-Op. Drainage District, 297 S.W. 730. (3) The trial court erred in sustaining plaintiff's oral motion to strike (in the nature of a special demurrer ore tenus) the affirmative defense of constructive eviction pleaded in defendant's amended answer. Phoenix Land & Improvement Co. v. Seidel, 135 Mo. App. 185, 115 S.W. 1070; Jackson v. Eddy, 12 Mo. 209; Vromania Apartments Company v. Goodman, 145 Mo. App. 653, 123 S.W. 543; Dolph v. Barry, 165 Mo. App. 659; Delmar Investment Company v. Blumenfeld, 118 Mo. App. 308, 94 S.W. 823; Barnard v. Weaver, 224 S.W. 152; Fleeman v. Pittman, 264 S.W. 442; Smith v. Greenstone, 208 S.W. 628; Lancashire v. Garford Mfg. Co., 199 Mo. App. 418, 203 S.W. 668; 36 Corpus Juris, pages 256, 261, 262, 263, 264, 267 and 269; 16 Ruling Case Law, pages 686 and 690. (4) The trial court erred in sustaining plaintiff's oral demurrer to defendant's amended counterclaim. (a) This counterclaim is proper in a suit of this sort. Revised Statutes of Missouri, 1929, Sec. 777; Barnard v. Weaver, 224 S.W. 152; Fleeman v. Pittman, 264 S.W. 442. (b) The counterclaim properly stated a cause of action against the plaintiff. Roman v. King, 289 Mo. 641, 233 S.W. 161; Horn Trunk Company v. Delano, 142 S.W. 770, 162 Mo. App. 402; Miller v. Geeser, 180 S.W. 3, 193 Mo. App. 1; Fabel v. Boehmer Realty Co., 227 S.W. 858; Myerson v. Kralemann, 208 S.W. 857; Gray v. Pearline, 43 S.W. (2d) 802; Hunter v. Schuchart, 267 S.W. 411; Karp v. Barton, 144 S.W. 1111; Lang v. Hill, 138 S.W. 698; Sheridan v. Forsee, 81 S.W. 494, 106 Mo. App. 495; Ward v. Fagan, 28 Mo. App. 116; McCloskey v. Investment Company, 298 S.W. 226; Wilson v. Jones, 182 S.W. 756; Goldman v. White & Davis Investment Co., 38 S.W. (2d) 62; 36 Corpus Juris, pages 212 and 235. (c) Even though landlord is under no obligation to make repairs, if he does so negligently, he is liable. Shaw v. Butterworth, 38 S.W. (2d) 57; Vollrath v. Stevens, 202 S.W. 283; Finer v. Nichols, 158 Mo. App. 539; Little v. McAdaras, 38 Mo. App. 187; Bloecher v. Duerbeck, 62 S.W. (2d) 553. (d) Elements of damage were properly allowable. 16 Ruling Case Law, page 697; 36 Corpus Juris, page 281.

Wood, Godfrey & Taylor and Rudolph K. Schurr for respondent.

(1) A tenant from month to month who becomes dissatisfied with the condition of the premises has but one remedy and that is to give his landlord thirty days' notice and vacate. Griffin v. Freeborn, 168 S.W. 219, 181 Mo. App. 203; Rogan v. Dockery, 23 Mo. App. 313. (2) The only defense to a suit for rent on a tenancy from month to month is payment. 36 C.J. 321, Sec. 1124; Davis v. Smith, 15 Mo. 467. (3) There is no such a thing as constructive eviction in a tenancy from month to month. 36 C.J. 321, Secs. 1126, 1128; Dolph v. Barry, 148 S.W. 196, 165 Mo. App. 659; Huggins v. Jasper, 114 S.W. 545, 134 Mo. App. 1. (4) Damages arising in tort are not counterclaimable in a suit for rent on a month to month tenancy. Graff v. Lemp Brew. Co., 109 S.W. 1044, 130 Mo. App. 618; Dimmock v. Daly, 9 Mo. App. 354; Medelet v. Wales, 16 Mo. 214; Roberts v. Cotty, 74 S.W. 886, 100 Mo. App. 500; Green v. Bell, 3 Mo. App. 291. (5) The landlord is not required to repair leased premises unless he covenants to do so. Van v. Weld, 17 Mo. 232 (1852); Rice v. White, 239 S.W. 141 (1922); Rogan v. Dockery, 23 Mo. App. 313 (1886); Hughes v. Vanstone, 24 Mo. App. 637 (1887); Little v. McAdaras, 38 Mo. App. 187 (1889); Grant v. Tomlinson, 119 S.W. 1079, 138 Mo. App. 222 (1909); Finer v. Nichols, 138 S.W. 889, 158 Mo. App. 539 (1911); McGuinn v. Federated Mines & Milling Co., 141 S.W. 467, 160 Mo. App. 28; Wilt v. Coughlin, 161 S.W. 888, 176 Mo. App. 275 (1913); Griffin v. Freeborn, 168 S.W. 219, 181 Mo. App. 203 (1914); Peter Piper Tailoring Co. v. Dobbin, 192 S.W. 1044, 195 Mo. App. 435 (1917); Patton v. Eveker, 232 S.W. 762 (1921); Plate Glass Underwriters Mutual Insurance Company v. Ridgewood Realty Company, 269 S.W. 659, 219 Mo. App. 186 (1925); Stifel Estate Company v. Cella, 291 S.W. 515, 220 Mo. App. 657 (1927).

BECKER, J.

The plaintiff became the defendant's landlord through the purchase of the building in which the defendant was occupying a flat as a tenant from month to month at a rental of $50 per month, payable in advance on the 15th day of each month. The defendant paid his rent for the period up until January 15, 1932, on which date he failed to pay the $50 dollars then due, covering his rent from January 15th to February 15th. The defendant vacated the flat on January 19th, without having given plaintiff the statutory notice required under Section 2584, Revised Statutes of Missouri, 1929 (Mo. Stat. Ann., Sec. 2584, p. 4832), but sent a check tendering payment of rent for the four days from January 15th to January 19th. The landlord returned the check and made demand for the January rent, and later, upon failure to find a tenant to take defendant's place, made demand for the rent for the month of February. Defendant refused payment and thereupon plaintiff filed his action for rent in two counts before a justice of the peace. Upon appeal in the circuit court the defendant filed an amended answer admitting occupancy of plaintiff's premises and his removal therefrom on January 19, 1932, setting up the defense of constructive eviction, and renewed his tender of $6.67 for the occupancy of said premises for the days of January 15th to January 19, 1932. Defendant filed also an amended counterclaim asking damages in the sum of $100 against the plaintiff.

On a trial of the case the defendant requested the right to open and close, which request was denied him by the trial court. Thereupon plaintiff was sworn and during the cross-examination of the plaintiff the court sustained an oral demurrer to the defendant's counterclaim and a motion to strike from the defendant's amended answer the defense of constructive eviction, leaving the defendant standing for trial upon his general denial alone. At the conclusion of plaintiff's own testimony the court peremptorily instructed the jury to find in favor of plaintiff on both counts in his petition. From the resulting judgment the defendant appeals.

It is here urged on appeal that the trial court erred in sustaining plaintiff's oral motion to strike the affirmative defense of constructive eviction pleaded in defendant's amended answer, and in sustaining plaintiff's oral demurrer to the defendant's amended counterclaim. Each of these points is well taken.

Defendant's amended answer alleges that defendant vacated the premises "because of the fact that his quiet, peaceable and uninterrupted possession of the same was completely impaired by the wrongful conduct of the plaintiff herein through his affirmative acts and omissions of duty to such an extent that the premises were rendered untenable, in the following particulars, to-wit:

"1. Plaintiff permitted the basement, over which he retained control and which he reserved for the common use of his tenants, to become damp and unhealthful, particularly to this defendant, his wife and two young children, inasmuch as his apartment was a first floor apartment, situated directly over the said basement.

"2. Plaintiff retained control and reserved for the common use of his tenants the first floor porch, the floor of which constituted the roof of defendant's garage; that defendant rented the premises from said plaintiff for $50 a month, to include the dwelling rooms and the garage space; that plaintiff negligently permitted the floor of the said porch to fall into such a state of disrepair that large quantities of water, during times of rain, flowed through the floor of said porch and onto defendant's automobile, seriously damaging the same.

"3. Plaintiff retained control of and reserved for the common use of his tenants the basement of the said apartment building. In the said basement were located furnaces generating steam for the purpose of heating the four apartments in said building; that one of these furnaces, not the one used by defendant herein, but that of another tenant, was permitted by the plaintiff to fall into such a state of disrepair that the valve thereof would frequently give forth a loud report many times each day and during the hours of the night, to such an extent as to disturb the slumber of defendant and his family and as to terrify defendant's infant children; that at said times of popping off as aforesaid, the said furnace would emit vast clouds of steam into the basement, which would rise up into the portion of the premises occupied by defendant and his family and cause serious inconvenience to and injured the health of defendant, his wife and children; that said condition of said furnace was well known by the plaintiff herein, and that he attempted to have said condition remedied, but did so so negligently that the condition continued to exist unabated."

The answer states that all of these conditions above mentioned were well known to plaintiff and that as the result of said condition he was forced to abandon and move from the premises.

It is readily observable that the defendant's answer does not set up a defense...