Roberts v. Cottey
74 S.W. 886
Mo. Ct. App.
1903
Check Treatment
SMITH, P. J.

This is an action to recover damages for personal injuries.

The petition alleged that the defendants were the owners of a. certain three story brick building in Kansas City which had wooden porches along the rear end of the second and third stories thereof; ‍​​​​​​​‌‌‌​‌‌‌‌​​‌​​​​​‌‌​‌‌‌​‌​‌​​‌‌​​‌‌‌​​‌​​​‍that plaintiff was the occupying tenant of said second and third stories; that the said second story porch and the timber therein had become rotten, dilapidated, dangerous, unsafe, and out *502of repair; that prior to August 1,1899, defendants gave to plaintiff notice that her tenancy, would he terminated on the said August 1, 1899, and that рlaintiff had accepted said notice and agreed to vacаte on that day; that on August 15, 1899, plaintiff and defendants made a contract whеreby plaintiff was to pay defendants $— per month rent and in consideration of said rent and contract, ‍​​​​​​​‌‌‌​‌‌‌‌​​‌​​​​​‌‌​‌‌‌​‌​‌​​‌‌​​‌‌‌​​‌​​​‍defendants agreed that they would repаir said porch immediately thereafter; that defendants fail-, ed to pеrform said contract by refusing to make said repairs, and that on August 28,1899, the plаintiff while a tenant lawfully using said porch, the floor and joists upon which the samе rested gave way, whereby plaintiff was suddenly precipitated through said floor and injured, etc.

There was a trial at which it was disclosed by the evidence adduced by the plaintiff that she had been an occupying tenant оf the second and third stories of the building for ten or eleven years; that the floors of the porches she considered perfectly safe, but the “banisters” — balustrade—were falling down and it was dangerous for her children; that on August 1,1899, she paid defendant McG-onigle the July rent, and then informed him ‍​​​​​​​‌‌‌​‌‌‌‌​​‌​​​​​‌‌​‌‌‌​‌​‌​​‌‌​​‌‌‌​​‌​​​‍that she intended to move out, but would pay him for each day of the month — August—that she remained; that she paid the rent monthly in advance; that on the 15th day of said month she made а parol contrac? with him. whereby it was agreed that if she would continue hеr tenancy at $25 per month, he would fix the porch and do some cleaning; that the fixing — repairs—to which she directed his attention was the balustrade оn the porches.

It is clear that it was not contemplated by either оf the parties to said contract that the floors and joists thereunder wеre to be included in the repairs therein provided ‍​​​​​​​‌‌‌​‌‌‌‌​​‌​​​​​‌‌​‌‌‌​‌​‌​​‌‌​​‌‌‌​​‌​​​‍for, because the plaintiff, who was entirely familiar with them, thought them to be perfectly safe. It thus аppears that the defendants, or either of them, *503did not by said contract agree or bind themselves, or himself, to repair the floors or joists of thе porches. The repairs wére limited to the balustrade. The part of the porch that gave way and caused the plaintiff’s injury, the defendants or defendant had not by their, or his, contract agreed to repair, and as thе law imposed upon them no such duty or obligation, they were not liable fоr the injury. The law is well settled in this jurisdiction ‍​​​​​​​‌‌‌​‌‌‌‌​​‌​​​​​‌‌​‌‌‌​‌​‌​​‌‌​​‌‌‌​​‌​​​‍to the effect that in the absence of a covenant the landlord is under no obligation to repair the premises during the course of the tenancy, nor is he liable in damages to his tenаnt for injuries resulting to him — the tenant — from the failure to repair the leased рremises. In the absence of contractual obligations the landlord аs to his tenant is only liable for acts of misfeasance and not of non-feasance. Val v. Weld, 17 Mo. 232; Morse v. Maddox, 17 Mo. 569; Burnes v. Fuchs, 28 Mo. App. 279; Ward v. Fagin, 101 Mo. 669; Gordon v. Peltzer, 56 Mo. App. l. c. 602; O’Brien v. Capwell, 59 Barb. 497.

In no view of the evidence which we have been able to taire do we disсover any liability by the defendants, or either of them, to the plaintiff for the injury, and accordingly we conclude that the trial court erred in overruling the defendant’s demurrer to it — the evidence.

Tt becomes in this view of the case unnecessary to consider the various other questions so ably discussed in the briefs of counsel. The order of the circuit court setting aside the verdict which was for plaintiff must, be affirmed.

All concur.