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Kohnle v. Paxton.

tion; further, in the former there was a specific charge of negligence, in the latter there was none. These differences disclose a binding contract for repairs in the instant cases, but on account of a lack of consideration there was no such contract in Glenn v. Hill. The court clearly recognized this fact in the latter case, holding that "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." Despite the fact, therefore, that the general rule as to the nature of a landlord's liability to a tenant under the covenants of a lease is broadly stated in Glenn v. Hill, the decision therein did not turn upon the application of the rule; however, if it be granted that the application of the rule was the determining doctrine the dissimilarity of the facts in the two cases does not render that of Glenn v. Hill an apt precedent in the cases at bar.

Moreover, the cases at bar are stronger in their facts than that of Glenn v. Hill. From the former all question of contributory negligence is removed, because the defect in the floor, as shown by the pleading, while presumptively at least known to the landlord, was unknown to the tenant until the injury occurred, while in the latter it was known to both parties at the time of the execution of the lease.

Cases from other jurisdictions discussed in Glenn v. Hill declare the conditions under which one sustaining a contractual relation to another is held not liable in an action sounding in tort; but these conditions are not ruled upon in Glenn v. Hill itself, because the facts did not authorize such a ruling. At best the rule as there announced was based upon an assumption and not the existence of a fact, it being

Kohnle v. Paxton.

conceded that there was no contract to repair, hence there was nothing upon which the rule could operate. This marks another material variance between Glenn v. Hill and the cases at bar, rendering it inapplicable as a precedent in determining the latter cases.

This court, except incidentally, has not discussed the rule since the rendition of the opinion in Glenn v. Hill. Our Courts of Appeals, however, in several well reasoned cases have given the subject careful consideration. The conclusions reached, while not controlling, may be strongly persuasive, and the reasons given for the application of the rule will not, therefore, be lightly regarded.

In Graff v. Brewing Co., 130 Mo. App. 1. c. 623, a landlord in a contract of rental agreed to make suitable repairs in a defective floor. They were not made, and the tenant in the ordinary use of the floor broke through same and received injuries, for which he brought suit against the landlord for damages. A general demurrer was filed to the petition, alleging it did not state facts sufficient to constitute a cause of action. This was sustained and plaintiff appealed to the Kansas City Court of Appeals, which reversed and remanded the case. After reviewing numerous cases discussing the question whether the action should be treated as one arising ex contractu, the court concludes that in an action on a contract damages cannot be recovered for personal injuries caused by a breach of the landlord's duty to repair, but the question arises whether or not the plaintiff may have a cause of action sounding in tort for the recovery of such damages on the ground that the defendant was negligent in failing to perform a duty he assumed when the relationship of landlord and tenant was established between him and the plaintiff; or do the facts pleaded characterize the neglect of the landlord as an act of misfeasance rather than a breach of contract? JOHNSON, J., speaking for the court, after

Kohnle v. Paxton.

quoting the somewhat epigrammatic statement of the rule as announced in Quay v. Lucas, 25 Mo. App. 4, that "where a covenant creates a duty, the neglect to perform that duty is a ground for an action for tort," says: "Logically it must follow that where a duty from one person to another becames 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."

Following these illustrations the proof necessary to be made to authorize a recovery is discussed. We are not concerned with that here, but as to the sufficiency of the pleading, similar in its material allegations to those in the instant cases. In regard thereto the court said in substance: From the facts alleged it appears that the damages claimed were direct and not remote in that the defendant had knowledge of the defects and covenanted to repair them, and that they were of such a nature that a reasonably prudent person cognizant of same would know that the use of the door in its defective condition would be attended by risk of injury. Thus tested the court held that a cause of action was stated and overruled the demurrer.

Kohnle v. Paxton.

After the opinion was rendered in the Graff case by the Kansas City Court of Appeals and the case had been remanded but not tried, the Supreme Court delivered the opinion in Glenn v. Hill, supra, whereupon the defendant in the Graff case again filed a general demurrer to the petition. This was sustained by the trial court upon the ground that the Court of Appeals' ruling contravened the opinion of the Supreme Court in Glenn v. Hill. The plaintiff again appealed to the Court of Appeals, which held (145 Mo. App. 364) that nothing in its ruling was in contravention of the doctrine declared in Glenn v. Hill; and the rule announced upon the former appeal was reasserted, the court briefly stating: that while a breach of contractual duty will not authorize an action ex delicto, where the breach constitutes more than such duty and is, in addition, a negligent violation of the relation existing between the landlord and tenant, an action in tort will lie for injuries arising from such violation.

In Dailey v. Vogl, 187 Mo. App. 261, the plaintiff, a tenant, fell or broke through certain defective boards in a walk on the rented premises which the landlord had agreed to repair. She sued for damages and recovered judgment. Defendant appealed to the Kansas City Court of Appeals. ELLISON, J., speaking for the court, held, following an exhaustive review of the authorities, that she could not recover in tort and questioned the correctness of the conclusion reached in the Graff cases. The result of his reasoning was that the landlord's liability was limited to his contract, no other duty resting on him; that he could not be held liable in tort for negligence. The other judges concurred in the result in separate opinions. No affirmative declaration of the law is made by the court in this case.

In Murphy v. Dee, 190 Mo. App. 83, a landlord, in the contract of letting, warranted the premises to

Kohnle v. Paxton.

be in good repair and that he would so keep them during the tenancy. Free access was by the terms of the lease given the landlord to enter at any time for the purpose of making repairs. The tenant, discovering the decayed condition of a porch on the premises, notified the landlord of the same, who failed to repair it. On account of such defect the tenant fell from the porch and received the injuries for which he sued and recovered damages. Among other defenses on appeal to the St. Louis Court of Appeals, it was urged that the petition did not state a cause of action. After a review of many cases the court reached the conclusion that under the allegations of the petition the plaintiff could not recover, as the action was in tort for damages arising out of a breach of contract. Glenn v. Hill and cases therein discussed are cited as sustaining this conclusion. Earlier cases of the Courts of Appeals announce the rule as in Murphy v. Dee, but under the facts upon which they were decided their citation is not appropriate.

A conflict of opinion as to the application of the rule in regard to a landlord's liability is apparent in the cases reviewed. The Graff cases, on the one hand, and Murphy v. Dee on the other, marking the extreme poles of difference. Lacking harmony like "sweet bells jangled," we must perforce seek elsewhere for even persuasive light leading to a correct conclusion in the cases before us. Presenting as these cases do the two distinct doctrines as to a landlord's liability to a tenant for injuries, they serve as a text in the consideration of cases from other jurisdictions.

In other jurisdictions a contrariety of opinion exists in the rulings of courts of last resort on this' subject. In addition to the compilation of cases in Glenn v. Hill and the Courts of Appeals cases, an exhaustive presentation of the authorities pro and Icon will be found in the annotated case of Hines v. Willcox, 96 Tenn. 148, 34 L. R. A. 824, and the af

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