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Kohnle v. Paxton.

WALKER, J.-This opinion embraces two appeals arising from the same transaction. One is from a suit brought by a husband and the other by his wife against the executors of Thomas H. Swope, for injuries to the wife alleged to have been received by her on account of the defective condition of a building occupied at the time by plaintiffs as tenants of Thomas H. Swope, who died before the institution of these actions. Demurrers were sustained to the petitions filed therein and plaintiffs perfected separate appeals. The matter at issue, therefore, is the sufficiency of these pleadings. Barring particular references to the plaintiff in each case, the material allegations are the same, in substance, in both, and for convenience they will be considered together.

The petitions are substantially as follows:

After pleading the marital relation existing between the parties plaintiff, they allege that the husband, Phillip Kohnle, for a valuable consideration rented of Thomas H. Swope, through an agent named S. W. Spangler, a certain house, the property of said Swope, for residential purposes, located in Kansas City, Missouri; that at the time said agent, Spangler, represented the property was in good repair and safe condition for the purpose for which it was let, and agreed, as a part of the contract of rental, to keep the same in good repair during said term; that acting under and influenced by the representations of Spangler, as the agent of Swope, the plaintiff Phillip Kohnle entered upon the premises and took possession and occupied the house thereon as a residence and was so occupying same with his wife at the time she received the injuries hereinafter set forth; that the representations as to the condition of said house were false, and as a matter of fact the under side of the boards and stringers constituting the kitchen floor of said house were, before, at the time of and after said letting of the property to Phillip Kohnle, in a decayed,

Kohnle v. Paxton.

rotten and dangerous condition; that said condition was latent, hidden and unknown to these plaintiffs. ́but was known to the said Thomas H. Swope and to his agent, Spangler, or could have been known to them by the exercise of such care as ordinarily prudent persons use under like or similar circumstances, and that said agent negligently failed to advise plaintiffs of the condition of said floor and negligently failed to put the same in repair; that Ocola Kohnle, one of the plaintiffs and the wife of said lessee, while in the use of said premises and in ignorance of the condition of said floor, stepped upon same and one of the boards of said floor broke causing her to fall through the hole made by said break, thereby producing severe injuries, detailed in the petition, for which plaintiffs seek damages; that said Thomas H. Swope died prior to the filing of these suits.

Other formal allegations, not necessary to be set out here, are contained in the petitions, the reasons urged in support of the general demurrers rendering it unnecessary.

I. Although not so expressly stated, it is evident from the contentions of the parties that Swope, the landlord, died during the plaintiffs' tenancy, after the


cause of action accrued, but before these suits were brought. Upon the death of Swope as stated the contention is based that the rights of action abated. This contention seeks support in a construction of section 5438, Revised Statutes 1909, by which the survival of causes of action, upon the death of either party in the class. of cases named, and the consequent right of their respective personal representatives to sue or defend, is sought to be so limited as to apply only to cases in which suits are pending at the time of the death of the party. For convenience of reference it is well to set forth said section in its own words, as follows:

Kohnle v. Paxton.

Section 5438: "Causes of action upon which suit has been or may hereafter be brought by the injured party for personal injuries, other than those resulting in death, whether such injuries be to the health or to the person of the injured party, shall not abate by reason of his death, nor by reason of the death of the person against whom such cause of action shall have accrued; but in case of the death of either or both such parties, such cause of action shall survive to the personal representative of such injured party, and against the person, receiver or corporation liable for such injuries and his legal representatives, and the liability and the measure of damages shall be the same as if such death or deaths had not occurred."

Our own court defines "causes of action" as employed in the above section to be matters for which actions may be brought. [Sperry v. Cook, 247 Mo. l. c. 139.] Elsewhere the words are defined as the right to bring suits (People v. Dodge, 104 Cal. 1. c. 490); or the fact or combination of facts which give rise to rights of action (Bruil v. Relief Assn., 72 Wis. 1. c. 433); or the right to institute and prosecute proceedings (Davis v. State ex rel., 119 Ind. 1. c. 558). Notwithstanding the well understood meaning of the words, their explicit definition here is not inappropriate because when otherwise expressed than in the words used in the section it is as clearly disclosed, but not more so than in the statutory words, that it is not the suits or actions that are to survive upon the death of one or both of the parties, but the causes or rights of action upon which such suits are based. The right of survival was extended to suits brought under the section and pending at the time of its enactment as well as to causes of action upon which suits might thereafter be brought. This being true, the right of survival cannot be limited to cases in which actions were pending at the time of the death

Kohnle v. Paxton.

of one or both of the parties. Such a meaning, under well recognized rules of construction, cannot be given. unless words be interpolated or added to the text, which, in view of the unambiguous character of those employed, is not authorized. The obvious meaning of the words employed, therefore, is that when a cause of action accrues under this section, a contingent right to a survival to the personal representative of either party to prosecute or defend, springs into existence upon such accrual, but does not become operative except upon the death of one or both of the parties. The right to the action having accrued, the death of a party in interest before the institution of a suit to enforce such right will not, for the reason stated, abate the action. It not only suffices but is an imperative rule that clear and comprehensive words demand no explanation to define their meaning; or, in other words, that which is clear cannot be made more clear. Sufficient, therefore, in itself, the section cannot, in our opinion, be reasonably construed other than as we have indicated. A contrary conclusion as to the application of the section (5438) was reached by the Kansas City Court of Appeals in Showen v. Street Ry., 164 Mo. App. I. c. 47. This conclusion, while somewhat incidental to the material issues in that case, does not correctly state the law and is overruled.

II. The contention as to the insufficiency of the petition is alleged to further consist in the absence of an allegation therein that the landlord agreed to keep the leased premises in repair. The doctrine is well established that a landlord is not bound to keep leased premises in repair in the absence of an agreement so to do. Without such an agreement his liability is limited to acts of misfeasance, but not of non-feasance. Not being bound to repair unless he has agreed so to


Kohnle v. Paxton.

do, it follows that injuries to the tenant arising from the landlord's failure to repair will not give a cause of action to the tenant. [Ward v. Fagin, 101 Mo. 669.] Hence the necessity, in an action for damages by the tenant for injuries received on account of defects in the premises, of the petition alleging that the landlord agreed to keep the premises in repair during the lessee's term. The petitions allege that the agent of the landlord agreed in the contract of rental to keep the premises in controversy in good repair during the term of plaintiffs' lease and suitable for the occupancy of plaintiffs as a residence. The rule announced, therefore, in Ward v. Fagin, supra, and affirmed in the later case of Glenn v. Hill, 210 Mo. 1. c. 296, is complied with, and the petitions in this respect are not subject to criticism.

Nature of the Action.

III. A lease or contract of rental existing between the parties, a question not free from difficulty arises as to whether, instead of actions sounding in tort, a suit should not have been brought for a breach of the covenant to repair. This question received careful consideration. by this court in Glenn v. Hill, 210 Mo. 291, in which BURGEES, J., speaking for the court, after reviewing numerous authorities, announced this rule: that when a promise to repair is based upon a valuable consideration and defendants have breached the contract, such breach will not furnish a basis for an action of tort under the statute (now Sec. 5426, R. S. 1909), but the remedy will be an action for breach of the contract. There is There is a marked difference, however, between the instant cases and that of Glenn v. Hill. In the former, there was an express agreement to repair incorporated in and made a part of the contract of rental; in the latter, the agreement to repair was made after the lease was entered into and therefore properly held to be without considera

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