Peterson v. Smart

Henry, J. —

The defendant was the owner of a tenement house on McGee street, in Kansas City, and in the spring of 1871, leased it by the month to one Spenser, who, without the knowledge or consent of Smart, sub-let one room of the house to plaintiff’s father. At the time there was a picket fence on the line of the lot fronting the street, which was removed by defendant while Spenser and plaintiff’s father occupied the house. On that side of the lot there was a perpendicular descent of seven or eight feet from the lot to the sidewalk. There was evidence strongly tending to prove that in the spring of 1871 the fence was removed, and that after its removal Spenser quit the premises, which were, thereupon, leased by the defendant to one Larson, who, without the knowledge or consent of defendant, sublet one room of the house to Peterson, the father of the plaintiff. Defendant did not agree with Larson that he would make any repairs, but it was a verbal understanding between Larson and defendant that Larson might make any needed repairs, and that defendant would deduct the cost of such repairs 'from the rent. In October, 1871, some time after Larson went into possession of the premises, the plaintiff, then a child five or six years of age, with other children, was’playing on that side of the- lot from which the fence had been taken, and fell from the lot to the sidewalk, receiving severe injuries from the fall. Eor those injuries he sued defendant for damages, and in the Kansas City court of common pleas obtained judg *37 ment for $1,987, from which, defendant has prosecuted this appeal

1. landlord and tenant: landlord not liable to rebuild fence, when: damages. If replacing the fence were embraced in the agreement between Larson and Smart, as to repairs which Larson might make, then theiailure to replace it was the neglect of Larson, if neglect be imputable to any one, and not to Smart. If it was not embraced in that agreement, then Smart was under no obligation to Larson, direct or indirect, to rebuild the fence, and if not to Larson, neither to his sub-tenant, betwixt whom and Smart there was no privity whatever. Peterson was a stranger on the premises, as to. Smart, and was there? not on his invitation or by his permission, but on the invitation and by the permission of Larsbn. If Larson, knowing that the fence was down, went into possession under an agreement in which there was no. obligation of Smart to repair the premises, and one of his children hard fallen over the precipice, he, according to highly respectable authorities, would have had no action against Smart. In Jaffe v. Harteau, 56 N. Y. 398 , it was held that “ a lessor of buildings, in the absence of fraud or any agreement to that effect, is not liable to lessee or others lawfully upon the premises, for their condition, or that they are tenantable and may be safely and conveniently used for the purposes for which they are apparently intended.” In O’Brien v. Capwell, 59 Barb 497, the plaintiff sued for damages sustained by a fall from a piazza extending across the near of a dwelling house owned by defendant and occupied at the time by a tenant under a written: lease for a year. The plaintiff was not the tenant, but a washer-woman in the tenant’s employment. The court .'decided that she was not entitled to recover, and said: “ But assuming, as I think we should bn this point, that she was- a servant of the tenant, and stood in his place, the question is then narrowed to the simple inquiry whether there existed any duty on the part of defendant to his tenant,- which would have entitled him to maintain this action if he had suffered the *38 injury instead of bis servant,” and then proceeded to decide that defendant being under no obligation to repair the premises, and their condition being known to the tenant, the landlord would not be liable to an action for negligence by the tenant, or his servant, or any one standing in his place, arising out of the fact that the premises were out of repair. See also Burdick v. Cheadle, 26 Ohio St. 898 . Smart owed no duty to Peterson, other than those he was under to Larson, and conceding that his obligation to each was the same, the case is as strongly put for the plaintiff as he could ask, and, under the authorities, it is clear that Larson, for a similar injury to one of his own children, could not have maintained an action against Smart. It is well settled that in a lease of real estate there is no implied covenant that the landlord will keep the pi’emises in repair or fit for occupation. Cleves v. Willoughby, 7 Hill 83 ; Levitt v. Fletcher, 10 Allen 120 .

2.-: landlord not liable to rebuild fence because of his trespass in removing same during a prior tenancy. It is contended that defendant committed a trespass in removing the fence, and that he had “ no more right to remove the fence than if the premises be- ,, longed to another. 1 his might be conceded so far as concerns the lessee m possession at the time, but a subsequent tenant of Smart could not complain of a trespass committed by Smart against a prior tenant. The evidence tended to prove that the fence was removed while Spenser occupied the premises; and, although plaintiff’s father occupied one room under Spenser at the time the fence was taken away, yet, when Spenser’s lease terminated and he quit the premises, which were then leased to Larson, there was a severance of all relations between Smart and Spenser, and Smart and all persons there by invitation or permission of Spenser, and when Peterson again went in under Larson, it was, so far as this case is concerned, as if he had then, for the first time, occupied a portion of the premises. The fact that he had before occupied under Spenser, is, therefore, of no consequence whatever in the consideration of Smart’s lia *39 bility in this action. The foregoing view of the case was ignored by the court in its refusal of instructions asked by defendant, and in giving for plaintiff instructions which authorized the jury to find for him, notwithstanding they might believe from the evidence that the fence was taken away while Spenser occupied the premises. The judgment is, therefore, reversed and the cause remanded.

All concur.