133 Mo. App. 280 | Mo. Ct. App. | 1908
(after stating the facts). — The question of the duty of a landlord to keep in reasonably safe condition for use, parts of premises he retains control of, intending them to be used by tenants to whom other parts are let, has been the source of conflicting decisions. Many cases on the subject are collected in the note to Dollard v. Roberts, 14 L. R. A. 238, and the conflict Avill be observed on reading said note and the text and notes of standard treatises on landlord and tenant law. The question has been presented usually in instances where an OAvner of a house had let apartments, in it to several tenants, but had retained control of such parts as porches, halls and stairways for the use in common of his tenants; and it is generally held the owner,.
“The rule laid down by the weight of authority is that when the landlord leases separate portions of the same building to different tenants, and reserves under his control those parts of the building or premises used in common by all the tenants, he is under an implied obligation to use reasonable diligence to keep in a safe condition the parts oyer which he so reserves control.”
In the McGinley case the evidence justified the conclusion that the owner of certain tenement houses wherein apartments were let to different parties, had retained control of the porches and stairways for purposes of construction and repair; and this being true, he was held- liable for an injury to the daughter of a tenant due to a defective outside stair railing giving way, it appearing the landlord could have learned of the condition of
Having determined the chute did not render the approach to the leased premises dangerous, our next inquiry relates to defendants’ duty to plaintiffs and their family in respect of keeping the floor of the part of the loft which, was neither parcel of nor appurtenant to the leasehold, in such a state that one might walk on it safely. No one was bound to use said part of the floor except Marcheck, who would have occasion to do so in attending to his duties as hostler. Still it is reasonable to infer the rest of the family were not forbidden to walk over it; in other words, were licensed to do so. Conceding plaintiffs’ children were licensed to play in the loft, 'defendants were under no duty to keep the floor safe for their use in that manner, and unless guilty of misfeasance, were not liable for an accident received by them. See Glaser v. Rothchild, 106 Mo. App. 418, 80 S. W. 332 and cases cited in opinion. This is true unless we say the chute was so apt to lure a child into danger as to range the action with the “turntable”
It is insisted by counsel for plaintiffs the ansAver of defendants aided the petition and under the ansAver Marcheck’s testimony of defendant’s promise to cover the chute was competent and plaintiffs could recover on it. This promise was not declared on, as it must have been to afford plaintiffs a cause of action. The portion of the ansAver supposed to help the petition and make evidence of the promise competent, was the plea of assumption by plaintiffs when they accepted the premises, of the risk of injury from the chute. If plaintiffs had established a prima-facie case in tort by evidence proving the chute made the passageway dangerous, perhaps they might have proved defendants promised, to cover it in refutation of plaintiffs’ supposed assumption of the risk.
Did any duty on the part of defendants accrue to deceased by virtue of the promise to cover the chute, and could deceased, if. he had lived, haA^e recovered damages resulting from non-performance of the duty? The weight of authority is that a lessor’s covenant to repair will not support an action for a personal injury due to failure to make repairs, because those injuries are deemed too remote to have been contemplated by the parties Avhen the covenant was given. [18 Ency. Law, 216; Mc
Other questions spring into sight in connection with such an action. One is whether it would lie in tort or only in contract, the duty to cover the mouth of the chute not being imposed by law in the absence of a stipulation. There are decisions allowing an action in
Another question to be considered is whether if the deceased might have sued in contract had he lived, the right to sue in that form of action was transmitted to the plaintiffs on his death by our statute, which provides that when the death of any person shall be caused by the wrongful act, neglect or default of another, and the act, neglect or default was one for which the party killed might have sued if he had been injured merely, the party in fault shall be liable to the survivors of the deceased as designated in section 2864 of the statutes. [R. S. 1899, sec. 2865.] We have found no case wherein the court considered whether default in the performance of a contract whereby another’s death was caused, falls within the purview of such a statute. All the decisions we have seen were in actions of tort. Still the words “act, neglect or default” are broad and various.
It might be necessary to determine whether an amendment to the petition declaring on defendants’ promise would substitute a new cause of action.
These questions have not been treated by counsel and we are unwilling to decide them without the help of briefs or arguments. Hence we will simply affirm the order for new trial and remand the cause for plaintiffs to take such a course as their counsel may advise.