210 Mo. 291 | Mo. | 1908
This is an action for $5,000 damages for the death of plaintiff’s husband, caused, as alleged in the petition, by the negligence and carelessness of the defendants.
Omitting caption, the petition is as follows:
“Now, on this day comes the plaintiff, and after obtaining leave of the court to file this amended petition, says, for her cause of action against the defendants, David P. Richie, John B. Hill and Henry E. Hill, that said defendants, John B. Hill and Henry E. Hall, were, at the happening of the grievances hereinafter mentioned, the owners of what is known as the ‘Hypatia,’ a large brick building located at numbers 1232 and 1234 Penn street, in Kansas City, Missouri; that on the 7th day of September, 1901, said defendants, by their agents, leased said premises to defendant, David P. Richie, for three years; that said Richie used said building as a hotel and boarding house, and on December 2, 1902, said Richie sold the furniture and good-will of said premises to plaintiff and her husband, and the plaintiff and her husband thereupon went into possession of said building and premises, occupying the same as a hotel and boarding house, and continued to so occupy said premises until the death of Andrew L. Glenn, plaintiff’s husband.
“That there were two furnaces furnished by defendants for the purpose of heating’ said premises, said furnaces being fixtures in the basement, and during the year 1903, in the winter of said year, said furnaces became worn out, defective and insufficient for heating said premises, and it became necessary to repair and*294 replace one furnace with a new one, and to remove said furnace from said premises; that in the spring of 1903 and in September of 1903, defendants, by their agents, D. Ellison & Son, were notified to fix, repair and remove one furnace, which defendants then and there agreed to do, and have the same in good condition before cold weather in the fall of 1903, and winter of said year.
“That said defendants negligently and carelessly failed to remove said furnace until the 19th day of October, 1903; that said defendants negligently and carelessly failed to replace said furnace with a new one until November 28, 1903, at which time and for a long time prior thereto the weather was very cold and damp, and the defendants undertook to make said repairs and replace said old and worn-out furnace with a new one, fit for heating said premises, and during said period of time defendants promised plaintiff and her husband that they would fix and repair the said furnace, and defendants, by said promises, induced plaintiff to remain in said building, until the same was replaced with a new one, and during said time plaintiff and her husband were subjected to exposure, cold and damp rooms, which defendants well knew, or could have known by the exercise of due care, but defendants negligently and carelessly failed to begin said repair, and furnish a new furnace until late in the fall, which, plaintiff alleges and avers, was unreasonable delay on defendants’ part; that defendants undertook to replace said old and defective furnace with a new one, and negligently and carelessly failed to. place said new furnace in said premises until November 28th, 1904, which, plaintiff alleges and avers, was unreasonable delay and negligence and carelessness on defendants’ part; which plaintiff avers was a wrongful act on the part of defendants., and during said time defendants failed to furnish stoves, or other*295 heat, necessary to -warm said premises; defendants at all times and dates, by their agents aforesaid, accepted the rent, viz., $100 per month, for the nse and occupancy of said premises, with two furnaces sufficient to heat said building and premises, and by reason of the neglect, carelessness and wrongful acts of defendants aforesaid, and the Revised Statutes of Missouri and laws of said State, a cause of action has arisen in favor of plaintiff, for the following reasons, to-wit: That during said time plaintiff’s husband was subjected to exposure, cold and said premises in an unheated condition, from which exposure he, the said Andrew L. Glenn, contracted a severe cold, hoarseness, continued exposure, a relapse and more cold, said furnace being daily expected by plaintiff and her husband, and thereby plaintiff and her said husband were induced to remain in said premises, and on November 16, 1904, in Nansas City, Mo., at said premises, plaintiff’s husband died as a result of said exposure, cold and defendants ’ wrongful acts.
“That by reason of the premises aforesaid, plaintiff lost her husband, Andrew L. Glenn, as the result of the exposure, cold, dampness and unheated condition of the premises, No. 1232 and 1234 Penn street, there being improper heat, caused by the unreasonable delay and wrongful acts of the defendants aforesaid in not furnishing a proper furnace or stoves, which was their duty to do, as they (the defendants) accepted rent for the same, viz., $100 per month.
“That by reason of the premises'aforesaid, plaintiff has sustained damages in the sum of five thousand dollars.
“Wherefore, plaintiff asks judgment against said defendants in the sum of five thousand dollars, together with her costs.”
Defendant Richie filed his demurrer to the petition, and the two Hills filed a joint demurrer, on the
There is no averment in the petition that under the contract of leasing the defendants agreed to repair, and in the absence of an agreement in the lease binding the landlord to put or keep the premises in repair, he is not liable in damages for failure to do so or for injuries sustained by the tenant by reason thereof. [Vai v. Weld, 17 Mo. 232; Peterson v. Smart, 70 Mo. 234; Ward v. Fagin, 101 Mo. 669; Taylor’s Landlord and Tenant (9 Ed.), secs. 327 and 328; Wood on Landlord and Tenant (2 Ed.), sec. 379; Brewster v. DeFremery, 33 Cal. 341.] But the petition in effect alleges that defendants took out the old furnace, and while in the act of replacing it with a new one, carelessly and negligently failed to complete the work in a reasonable time, and left the premises in an untenantable condition for an unreasonable length of time, in consequence of which plaintiff and her husband were unduly exposed to the winter and the extreme cold which resulted in the death of plaintiff’s husband.
The promise to repair made after the execution of the lease was verbal, gratuitous and without consideration, and could not form .the basis of a cause of action for its breach. [Wood on Landlord and Tenant, sec. 379; Taylor on Landlord and Tenant (9 Ed.), sec. 329; Altsheler v. Conrad, 118 Ky. 647.]
In Rhoades v. Seidel, 139 Mich. l. c. 610, it is said: ‘ ‘ They had not agreed to make repairs, and therefore they were under no obligation to make them. . . .
The petition is not predicated upon the ground that the work in replacing the new furnace was carelessly and negligently done, resulting in the injury to plaintiff’s husband, but upon the ground that defendants carelessly and negligently failed to complete the work in a reasonable time, for which there was no valid contract or agreement. If it had been bottomed upon negligence in the performance of the work, it would make no difference whether there was any valid agreement for its performance or not; for if defendants undertook its performance, then it devolved upon them to use ordinary care and caution not to injure their tenants; but as it is bottomed upon the failure of the defendants to complete the work in a reasonable time, for which there was no valid contract, it seems clear that the petition states no cause of action. This position is sustained by the author
In Stelz v. Van Dusen, 93 App. Liv. (N. Y.) 358, the plaintiff was injured by the breaking down of a floor in a house rented of the defendant. The plaintiff, before she moved into the house, called the defendant’s attention to the condition of the floor, and he promised to- repair it. The court said: ‘ ‘ The gravamen of the plaintiff’s cause of action was the defendant’s failure to fulfill this promise to repair. No action for negligence was maintainable on this basis, and the complaint o-ught to have been dismissed. Assuming the making of the alleged agreement to repair, the breach thereof did not confer upon the tenant or his wife any right of action based upon negligence. The relation between the parties to the agreement was purely contractual, and the violation of the contract by the landlord did not create any liability in tort.” To the same effect is Tuttle v. Gilbert Mfg. Co., 145 Mass. 169.
In Dustin v. Curtis, 67 Atl. 220, the plaintiff was
Davis v. Smith, 26 R. I. 129, was an action by a father for the death of his infant child, under a statute in every essential particular like section 2865, supra. A demurrer to the declaration was sustained. The petition alleged in substance that the plaintiff rented certain premises from the defendant, who agreed to keep the same in repair; that defendant suffered certain drains to remain out of repair, in consequence of which prejudicial gases and odors were emitted, and the child, by reason thereof, contracted diptberia, of which he died. The court, in a well-considered opinion, in which many authorities are cited and discussed, said: “The courts very generally hold that the tenant and his wife, children, servants, and guests cannot sue in- tort for breach of the' landlord’s covenant to repair. Strangers in' certain cases may do so, but the tenant’s remedy is only on the contract.”
Our conclusion is that the petition fails to state a cause of action, and that the demurrer was properly sustained. The conclusion reached renders it unnec
Finding no reversible error in the record, the judgment is affirmed.