Zeibig v. Pfeiffer Chemical Co.

• Decision Date: 01 October 1910
• Citation: 131 S.W. 131,150 Mo. App. 482
• Parties: ZEIBIG v. PFEIFFER CHEMICAL CO.
• Court: Missouri Court of Appeals

131 S.W. 131

150 Mo. App. 482

ZEIBIG v. PFEIFFER CHEMICAL CO.

St. Louis Court of Appeals. Missouri.

October 1, 1910.

1. LANDLORD AND TENANT (§ 150)—BUILDINGS—FIRE ESCAPES—DUTY TO CONSTRUCT.

Ann. St. 1906, § 9053—1, declares that it shall be the duty of the owner, proprietor, lessee, or keeper of every building used as a business place, which has a height of three or more stories, to provide outside fire escapes. Held that, in so far as the general public was concerned, the obligation to construct fire escapes on such buildings rested on both the owner and the lessee.

2. LANDLORD AND TENANT (§ 150)—LEASED PREMISES — PERMANENT IMPROVEMENTS — FIXTURES—DUTY TO PROVIDE.

Though at common law the burden of repairing demised premises rests on the tenant, and, in the absence of a covenant, the landlord is not required to construct appurtenances or repair the premises after placing them in the possession of the lessee, the landlord is required to construct permanent improvements or fixtures, such as fire escapes, where the duty is enjoined by statute; Ann. St. 1906, § 9053—1, requiring the owner, proprietor, lessee, or keeper of a three-story business building to equip it with fire escapes.

3. LANDLORD AND TENANT (§ 152)—LEASES— RESTRICTIVE COVENANT — FIRE ESCAPES — DUTY OF TENANT TO CONSTRUCT.

A covenant in a lease of a business building more than three stories high that the premises should be kept in good order and repair, free from any nuisance or filth on or adjacent thereto, at the expense of the lessee, and should be used by the lessee and all persons occupying the same in compliance with and subject to all laws and ordinances of the city of St. Louis, and the state of Missouri, was a restrictive covenant governing the use of the property only, and did not impose on the tenant the duty of erecting fire escapes on the outside of the building, as required by Ann. St. 1906, § 9053-1.

Appeal from St. Louis Circuit Court; George C. Hitchcock, Judge.

Action by Frederick G. Zeibig, as trustee, etc., against the Pfeiffer Chemical Company. Judgment for defendant, and plaintiff appeals. Affirmed.

George W. Lubke and George W. Lubke, Jr., for appellant. Walter B. Douglass, for respondent.

NORTONI, J.

This is a suit by a landlord against his tenant for the value of a fire escape constructed by the landlord on the demised premises during the term of the lease. The finding and judgment were for defendant, and plaintiff prosecutes the appeal.

Plaintiff is trustee under the will of Pierre Chouteau, Jr., and as such possesses the legal title to the demised premises. It appears that by an instrument of writing duly executed between the parties plaintiff leased and demised to defendant a certain four-story brick building situate at the northwest corner of the levee and Vine street in the city of St. Louis for a term of five years and eight months from the 1st day of June, 1906. The lease requires defendant, which is a business corporation, to occupy the premises for business purposes only, and it appears they were so occupied by other tenants immediately before. There is no express agreement to be found in the lease which requires the tenant to construct a fire escape on the building unless such a covenant is contained in obscure language to be hereafter adverted to. After defendant had occupied the premises under the lease for several months, the authorities notified both plaintiff, the owner, and defendant, the tenant, to construct a fire escape thereon in accordance with the statute requiring the same. Both plaintiff and defendant declined to do so; each insisting that the law fixed the duty upon the other. After some controversy about the matter, plaintiff and one of defendant's officers were both informed against by the prosecuting attorney in the court of criminal correction as for a misdemeanor for their failure to construct the fire escape in accordance with the statute. In order to obviate further annoyance and prosecution about the matter, plaintiff induced the dismissal of the criminal proceedings by constructing the fire escape in the building, for which he paid $227, and thereupon instituted this suit to recover from defendant the amount so expended as though he had paid out the amount mentioned to its use and benefit. Our statute—Laws Mo. 1901, p. 219, as amended (see Laws Mo. 1903, p. 251 [Ann. St. 1906, § 9053—1])—declares: "It shall be the duty of the owner, proprietor, lessee or keeper of every * * * building * * * which is used as a business place, * * * which has a height of three or more stories to provide said structure with fire escapes attached to the exterior of said building," etc. It thus appears that, in so far as the general public is concerned, the law lays an obligation against both the owner and lessee to construct fire escapes. Johnson v. Snow, 201 Mo. 450, 100 S. W. 5; Yall v. Snow, 201 Mo. 511, 100 S. W. 1, 10 L. R. A. (N. S.) 177, 119 Am. St. Rep. 781; Coutant v. Snow, 201 Mo. 527, 100 S. W. 5. But as between the owner and the lessee, aside from any contract, the obligation of the law is not identical with that which obtains with reference to the public, for in such circumstances the duty of constructing the fire escape rests primarily upon the owner of the property. The question has been pointedly decided by the Supreme Court in Yall v. Snow, 201 Mo. 511, 524, 525, 100 S. W. 1, 10 L. R. A. (N. S.) 177, 119 Am. St. Rep. 781. It is true as a general proposition, that by the common law the burden of repairs on the demised premises rests upon the tenant, and, unless he covenants to do so, the landlord is not required to construct appurtenances, nor repair the premises after having placed them in the possession of the lessee. 1 Taylor on Landlord and Tenant (9th Ed.) §§ 327, 328; Ward v. Fagin, 101 Mo. 669, 14 S. W. 738, 10 L. R. A. 147, 20 Am. St. Rep. 650; Herdt v. Koenig, 137 Mo. App. 589, 594, 119 S. W. 56.

But to this general rule there is a well-established exception which obtains with respect to the construction of such permanent improvements or fixtures as fire escapes where the duty is...