Ward v. Fagan

Rombauer, J., delivered the opinion of the court. The defendant was the lessee of a certain building, and sublet one room therein to the plaintiffs, who, at the date of the grievance hereinafter stated, occupied it as a sample-room for their wares. This room was separated by a hall, or passageway, from the western main wall of the building. In June, 1886, this main wall fell, owing to an excavation made in its vicinity by an adjoining proprietor, and by its fall caused damages to the plaintiffs’ wares and property within the room leased by them. The plaintiffs thereupon brought the present action against the defendant, before a justice of the peace, and, upon its retrial in the circuit court, recovered a [119] judgment which is fully justified in amount if otherwise correct. The defendant appeals. It may be conceded at the outset that if the plaintiffs’ action was based on any contract obligation on the part of the defendant, the recovery could not be upheld, as, between landlord and tenant, there is no implied obligation, on the part of the landlord, that the property let is in a safe condition when let, or that it will be kept by the landlord’s repairs in a safe condition during the term of tenancy. Peterson v. Smart, 70 Mo. 38; Rogan v. Dockery, 23 Mo. App. 313; Joyce v. DeGiverville, 2 Mo. App. 596. The plaintiffs do not deny this proposition, but claim that the law has no application to a case like the one at bar, where the tenant is a lessee of only part of the premises, and where the injury complained of was owing to the defective condition, or non-repair of other parts of the structure, of which they had no possession or control, but which were in the exclusive possession of the landlord. This distinction is recognized in Massachusetts and Maine, and the tenant in the former state was permitted to recover for injuries sustained by the defect of a stairway used by him in common with the landlord and other tenants (Looney v. McLean, 129 Mass. 35), and in the other for damages caused to his goods in the lower story of a house by a leaky roof. Toole v. Beckett, 67 Me. 544. These cases proceed on the theory that, as to the portions of the building which remain in the landlord’s exclusive possession, he retains the responsibilities of a general owner to all persons, including his tenants. On the other hand, such responsibility to tenants is denied by very respectable authorities. In Krueger v. Ferrant (29 Minn. 389), a case almost identical in its facts with Toole v. Beckett, the authority of the latter case is denied, the court holding that there seems to be no sound reason why the rule, that there is no implied covenant on the part of the landlord to repair, should not extend in like manner to such portions of the premises which are not demised to] the tenant, but which are [120] necessary to his use or protection, as in the case of-a common roof. So in Cole v. McKey (66 Wis. 509), and Purcell v. English (86 Ind. 34), the authority of the case in Looney v. McLean is denied, Judge Elliot, in a well-considered opinion, and upon a full review of the authorities, holding that the Massachusetts case is supported neither by decisions in other states nor by the decisions in the same state cited in the opinion in its support. To the same effect is Sherwood v. Seaman (2 Bosw. 132), where it was decided that a landlord, in the absence of an express covenant, is under no obligation to repair, or to do any act to protect his tenant from the consequences of the lawful acts of the owner of adjoining premises, in excavating them to such depth as would endanger the stability of the demised premises. It is not questioned but that the owner of premises may become liable to a stranger under similar circumstances. That liability, however, as hereinafter stated, rests on a different principle. While there are many cases in this state deciding the general proposition that a landlord is under no implied obligation to repair premises let, there is none deciding the exact point in controversy here. The nearest approach to it is in the case of Joyce v. DeGiverville (2 Mo. App. 596), where this court decided that the landlord is under no implied obligation to repair a privy in a tenement-house, the tenement-house being let to various tenants in separate portions, and the privy being used by them in common. This being the state of the law, we are in the position of adjudging the case at bar on principle, so far as the same can be done, in harmony with other branches of the law on the same subject expressly decided by the Supreme Court and this court. The owner’s liability to third persons, for injuries received by the defective condition of premises, rests on the principle that each person is bound to so use his property as not to endanger, by the negligent use thereof, the person or property of another. Whether the [121] negligence consists in the commission of an act, or the omission of an ordinary precaution, is immaterial. It must be borne in mind, however, that strangers occupy no contractual relation with the owner of the property, and . are, therefore, powerless to protect themselves against his neglect by an express contract. It is, therefore, but just that such protection should be afforded to them by the implied condition which attaches to the tenure of all property. The tenant, in that respect, occupies a different position. He stands in a contractual relation with Ms landlord. So far as he is concerned, one of the reasons of the rule falls away. He knows that, as to the premises occupied by him, the landlord is under no obligation to repair. Does he, therefore, in relation to such part of the premises which, though not occupied'by him, are yet essential to the enjoyment of the premises which are thus occupied by him, stand in the position of a tenant, or in that of a stranger ? On the one hand, it may be said that it would be unreasonable (if not impracticable) to require that the tenant should repair such part of the premises as are under the exclusive control of the landlord. On the other 'hand, it may be said that such part of the premises, though not let, are essential to the enjoyment of those let and occupied by the tenant, and thus, incidentally, within the rule that the tenant must protect himself as to repairs by covenant. It will be thus seen that a plausible argument can be made on either side of the question. The decisive element is, which of the arguments is most consonant with our sense of justice, and yet not opposed to the analogies of the law. Here the wall which fell was in no sense under the tenant’s control. It would seem to us he could not have even interfered with it in any way without making himself liable in an action of trespass. For all practicable purposes, he was as much a stranger in regard to this wall as he would be in regard to the wall of an adjoining building owned by the same landlord, the safety of which might have been essential to the prem [122] ises let. Why should the law impose upon a tenant the duty to protect himself by covenants against dangers which could not reasonably have entered into the contemplation of the parties when they made their contract ? The just rule in such a case is, that one who is restricted by the terms of his letting to one part'of the premises, who has no possession, control, or right of interference with other parts, should, as to such other parts, which are in the exclusive possession of the landlord, occupy no worse position than a stranger. This disposes of the main controversy in the present action in favor of the plaintiffs’ recovery. Other complaints made by the appellant may be disposed of briefly. The petition would have been fatally defective if filed in a court of record, but as the action was brought before a justice of the peace, and the statement filed therein was sufficiently definite to advise the defendant of the cause of action, and to bar another recovery for the same cause, the defect will not warrant an arrest of the judgment. Whether or no the defendant’s agents to collect rents were properly his agents to receive notice of the danger of the wall in question is immaterial, since it sufficiently appears from other .parts of the record that the defendant was aware of its condition. The material inquiry is, whether he had notice, and not how he received it; and that he had timely notice is no t substantially controverted. It results that the judgment must be affirmed. It is so ordered. Judge Thompson concurs. Judge Lewis is of opinion that the decision of the court is opposed to a previous decision of the Supreme Court. It is, therefore, ordered that the clerk certify the cause and the original transcript herein to the Supreme Court for its final determination, and that all proceedings on the judgment of this court be stayed until the final disposal of the cause by the Supreme Court.