130 Mo. App. 618 | Mo. Ct. App. | 1908
Action by a tenant against his landlord to recover damages for personal injuries alleged to have been caused by the negligent failure of the landlord to repair. It is alleged in the petition that defendant, the lessee of a business house in Kansas City, sublet the storeroom on the first floor to plaintiff for use as a dramshop; “that at said time the floor of said storeroom was broken and decayed in various places, and at the places hereinafter mentioned, and at the time plaintiff rented said storeroom, and as part of the contract of renting, and as part of the consideration for the payment by this plaintiff to 'defendant of said sum per month, defendant promised and agreed with plaintiff that it would put said storeroom in a good state of repair and in particular would repair said hereinafter mentioned broken and decayed places in said floor: That relying upon said agreement and contract on the part of defendant, plaintiff took possession of said storeroom on or about the 10th day of April, 1905, under said contract,
As between landlord and tenant, the rule is well settled that in the absence of an express agreement, the landlord is under no obligation to repair defects in the premises existing at the time of the letting. A tenant takes the property in the condition in which he finds it and cannot require the landlord to make it more habit
The facts before us show that defendant, with knowledge of the existence of a defective floor, agreed as a part of the contract for the renting of the premises to make suitable repairs and that when the injury occurred, a sufficient time had elapsed for the performance of this covenant. In such state of case, the rule we have just considered is without application and we pass to the solution of the questions relating to the nature and extent of the obligation assumed by defendant under the covenant to repair and of the liability he incurred by failing to perform that covenant.
Should we be required to treat the action only as one arising ex contractu, i. e., founded on a breach of the contract to repair within a reasonable time, we would be compelled by the great weight of authority to hold defendant free from liability for personal injuries resulting from such breach. This would be on the ground that the measure of damages in such cases is the expense incurred by the tenánt in the doing of the work the landlord agreed to do but did not, and that personal injuries
Tbe extracts we have quoted declare a doctrine generally recognized and applied both in America and England. In an action on contract, defendant cannot re
In this State, the principle is recognized that “where a covenant creates a duty the neglect to perform that duty is a ground for an action for tort.” [Quay v. Lucas, 25 Mo. App. 4.] Logically it must follow that where a duty from one person to another becomes an incident to the status or relationship established between them, whether the duty results from the principles of law relating to such status or from the contract of the parties, a negligent omission to discharge it is a tort which will afford the injured party a cause of .action ex delicto. Thus, where a common carrier fails to deliver at their destination goods received for shipment, it may be held liable either in an action on'the contract or in one arising from the tortious failure to perform a common law duty. The relation of master and servant is invariably created by contract, yet the master may be held in an action ex delicto for his failure to perform the duty of exercising reasonable care to provide his servant a reasonably safe place in which to work. Such examples are illustrative of the soundness and usefulness of the principle under discussion.
In Thompson v. Clemens, supra, the Court of Appeals of Maryland, after an exhaustive review of the authorities, concluded: “When the landlord has agreed to make repairs there is a duty resting on him to do so and on his failure the tenant may either sue on his con
Point is made by defendant that plaintiff on his OAvn statement of facts must be held in law to have been
The judgment is reversed and the cause remanded.