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Kohnle v. Paxton.

firmance of this case in 100 Tenn. 538, 41 L. R. A. 278. A discussion of Hines v. Willcox will also be found in our own reports in Whiteley v. McLaughlin, 183 Mo. 160, the disputed question here, however, not being ruled on. Other cases are Dustin v. Curtis, 74 N. H. 266, 11 L. R. A. (N. S.) 504; Walsh v. Schmidt, 206 Mass. 405, 34 L. R. A. (N. S.) 798; Anderson v. Robinson, 182 Ala. 615, 38 Am. & Eng. Ann. Cas. 829; Mesher v. Osborne, 134 Pac. (Wash.) 1092, 48 L. R. A. (N. S.) 917, and cases cited in 24 Cyc. 1114, note 50. An analysis of these and other cases shows that the strong current of authority is in favor of the rule that for a breach of covenant to repair leased premises in possession of the tenant, the landlord cannot be held liable in tort for personal injuries received by the tenant as a result of a defect in the premises. The reason, succinctly stated, for this rule is that a tort is a wrong to another in his rights created by law or existing in consequence of a relation established by contract, but that it cannot be based upon the contract itself; or, stated differently, a duty imposed upon the landlord to make repairs does not arise out of the relation created by the contract, but rests upon an express stipulation in the contract. Being a duty assumed by the contract, its breach does not constitute a tort.

Cases announcing a contrary doctrine are Willcox v. Hines, 100 Tenn. 538; Barron v. Liedloff, 95 Minn. 474; Sontag v. O'Hare, 73 Ill. App. 432; Mesher v. Osborne, 134 Pac. (Wash.) 1092; Lowe v. O'Brien, 138 Pac. (Wash.) 295. These cases declare the rule as in Graff v. Brewing Co., that a landlord may be sued in tort for injuries received by a tenant on account of defective premises which the landlord has contracted to keep in repair. This doctrine necessitates the holding that the landlord in failing to repair has been guilty of something more than a breach of the contract, viz., negligence. Upon

Kohnle v. Paxton.

no other theory can a basis be established for an action sounding in tort. To sustain the rule as thus announced it is necessary to determine when the contractual obligation ends and the liability for negligence begins. They cannot be coexistent as to matters within the purview of the contract, which, if not forfeited, continues during the time prescribed and loses none of its force or effectiveness by reason of any act of the landlord. The contract not only defines the time and terms of the rental, but it measures as well the obligations of the parties. Thus complete within itself, it cannot be reasonably said that upon a failure to comply with its conditions a right of action authorized by its terms and within the contemplation of the law, can be supplanted by another not based upon or growing out of the contract, but having its origin purely in a process of reasoning.

A breach of the contract to repair resulting in injuries to the tenant may arise from the negligence of the landlord, but this is not such technical negligence as will authorize a right of action in tort; this can only exist independent of the contract for injuries not proximately resulting from the breach and therefore not within the contemplation of the parties Put more plainly, an agreement to repair does not contemplate a destruction of life or an injury to the person which may result accidentally from an omission to fulfill the terms of the agreement. [Hamilton v. Feary, 8 Ind. App. 615, 52 Am. St. 485, affirmed 140 Ind. 45; Arnold v. Clark, 13 Jones & Spen. 1. c. 257; Miller v. Rinaldo, 47 N. Y. Supp. 636.]

In the instant cases it not only appears from the pleadings that the landlord covenanted to repair and keep the premises in a tenantable condition, but that the defect was or could have been known to the landlord and was not known to the tenant. While there is a line of authorities requiring the tenant to be notified of latent defects, and upon a failure so to do

Kohnle v. Paxton.

holding the landlord liable for injuries arising therefrom, the nature of the defect, in this case a worn floor, was as easily discoverable by the tenant as the landlord, and since the pleadings charge presumption of knowledge from the landlord's ownership rather than actual knowledge, in the absence of fraud or deceit this will not serve to fix a liability in tort. Ownership does not create a presumption of a knowledge of the particular condition of premises; and a defect alleged to be latent, if easily discoverable to both parties, is not a ground of liability. [Doyle v. Railroad, 147 U. S. 413; Anderson v. Robinson, 182 Ala. 615; Jackson v. Odell, 9 Daly (N. Y.), 371; Davidson v. Fischer, 11 Colo. 583.]

In the cases at bar the petitions sound in tort, but they do not disclose such active negligence independent of the contract as will support an action of this character. In view, therefore, of the strong trend of authority limiting the right of action in such cases to suits for a breach of the contract, we feel impelled to hold that the plaintiffs have mistaken their remedy. That much may be and has been said to the contrary, especially in the well reasoned cases of Willcox v. Hines and Graff v. Brewing Co., supra, we do not hesitate to admit; but considering the nature of the actions, the relationship of the parties, as landlord and tenant, and the general law in regard to the force and effect of contracts, the doctrine declared in these cases is not approved.

From all of which it follows that the judgment of the trial court is affirmed. Faris, P. J., and Revelle, J., concur in paragraphs two and three and the result, but express no opinion as to paragraph one.

State v. Owens.

THE STATE v. TED OWENS, Appellant.

Division Two, July 5, 1916.

1. ESCAPING PRISONER: Form Street Commissioner. Under Sec. 4381, R. S. 1909, declaring that "if any person conîned in the county jail upon conviction for any criminal offense, or held in custody going to such jail, shall break such prison or custody, and escape therefrom, he shall, upon conviction, be punished by imprisonment in the penitentiarv" etc., a prisoner who has by order of the court been placed in the custody of the street commissioner and required to work on the streets, cannot be convicted for breaking custody and escaping from said street commissioner. The statute limits its violation to a breaking and escaping from a county jail or from custody going to jail. Nor is there any other statute under which a prisoner can be convicted for breaking custody and escaping from a street commissioner while engaged at work in the streets.


: Construing Criminal Statute. Criminal statutes must be strictly construed. The court cannot, on a plea of a failure of justice, extend a criminal statute beyond the grammatical and natural meaning of the terms it uses.

Appeal from Howell Circuit Court.-Hon. W. N. Evans, Judge.


M. E. Morrow for appellant.

(1) The indictment charges no offense against the laws of Missouri, as it was not charged that the defendant escaped from an officer having legal custody of him, while going to jail. Sec. 4381, R. S. 1909. (2) The indictment does not charge that defendant was lawfully in the custody of N. F. Webster, the street commissioner, at the time of his escape, nor does it state facts sufficient to show that said Webster's custody was lawful. Church on Habeas Corpus, 169. (3) There can be no escape when the defendant was not

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State v. Owens.

lawfully in the custody of the officer. The street commissioner could not be the lawful officer unless the county court had made a contract with the city to work the prisoner. Sec. 5281, R. S. 1909.

John T. Barker, Attorney-General, and Kenneth

C. Sears for the State.

(1) Quaere: Whether the act of the defendant constituted a statutory offense in view of the rule that penal statute must be strictly construed. State v. Chapman, 33 Kan. 134; Commonwealth v. Homer, 46 Mass. 555. (a) Cases wherein strict construction prevailed: McClintic v. Lockridge, 11 Leigh, 253; Welsh v. State, 61 S. E. (Ga. App.) 496; State v. Pishner, 52 L. R. A. (N. S.) 369. (b) Cases wherein there was a more liberal construction: Commonwealth v. Briggs, 46 Mass. 559; Commonwealth v. Adams, 3 Pa. Super. Ct. 167. (2) If other difficulties do not prevent we ask that the cause be remanded so that a trial can be had upon a common law offense. Secs. 8047-8048, R. S. 1909; 2 Hawkins, P. C., 189; Commonwealth v. Farrell, 87 Mass. 130. (3) Before a conviction can be had of the offense of escape there must be lawful custody. Daniel v. State, 114 Ga. 537; Saylor v. Commonwealth, 122 Ky. 776. Quaere: Whether the custody in this case was lawful since there was no order from the county court permitting the street commissioner to have charge of the defendant. Secs. 3731-3733, 4915, 5281, R. S. 1909.

WILLIAMS, C.-Under an indictment attempting to charge the defendant with a violation of section 4381, Revised Statutes 1909, defendant was tried in the circuit court of Howell County, found guilty and his punishment assessed at two years in the penitentiary. Defendant has duly perfected an appeal to this court.

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