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the construction and maintenance of a loading | Broadway or else must exercise something dock across the walk, extending from the build- of the agility of an Alpine climber to get ing to the curb. up the cleated incline to the top of the platform and then pass over it and descend the incline at the other end, provided the platform is not occupied with defendants' merchandise.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88 1459-1466; Dec. Dig. § 680, 681.*]

Appeal from Circuit Court, Jackson County; T. J. Seehorn, Judge.

Suit by the State, on relation of Eva P.

Ellis, against E. F. Mulligan and the Graham Paper Company to enjoin the further

maintenance of certain obstructions on a

sidewalk and to compel their removal. Decree for relator, and defendants appeal. Affirmed.

Reinhardt, Schibsby & Muenich, of Kansas City, for appellants. Floyd Jacobs, Pros. Atty., and Metcalf, Brady & Sherman, all of Kansas City, for respondent.

TRIMBLE, J. Defendant Mulligan is the owner, and the Graham Paper Company is the lessee of a new seven-story concrete and steel building at the northeast corner of Sixth street and Broadway in Kansas City, Mo. As thus located, the building abuts the north side of Sixth street from the east edge of Broadway east for at least a distance of 75 feet and abuts the east side of Broadway from the north edge of Sixth street for at least a distance of 62 feet. Relator, Eva P. Ellis, is the owner of a building fronting west on Broadway and immediately adjoining the building owned by Mulligan. It also is flush with the edge of the street and is a business house or storeroom.

This suit is brought by the prosecuting atthe state, at the relation and to the use of torney of Jackson county in the name of Eva P. Ellis, as owner of the adjoining building, to enjoin the further maintenance of said obstructions in the sidewalk and to compel their removal. The learned trial court heard the evidence and found for plaintiff and ordered the obstructions removed as being public nuisances and restrained defendants from further maintaining them. The court further found that defendant Kansas City exceeded its authority in permitting said obstructions to be placed in said streets or to remain there. The defendants Mulligan and the Graham Paper Company appealed.

In the abstract of the record are five large photographs of these docks showing their location on the sidewalk and their proximity to relator's business house. A glance at these photographs will convince any one, not blinded by self-interest, that these loading docks are not merely encroachments upon the sidewalk but are out-and-out appropriations of it to the use of defendants Mulligan and the paper company's building and business carried on therein. If anything more could be done to compel persons using the sidewalk to travel out in the public street in order to get by the Mulligan building, we do not know what it would be unless an armed guard were stationed there to see that they did so. As thus constituted, the loading docks are public nuisances of the most flagrant character. And if defendants can thus usurp the sidewalk leading to relator's building in defiance of her rights and those of the public, under the pretense of authority from the city by ordinance allowing the docks to be built, then there is nothing to forbid defendants from appropriating the entire street in the same way.

[1] On Sunday, October 29, 1911, defendants constructed a loading deck or platform on Sixth street, along the south side of the Mulligan building, covering the entire sidewalk space and extending from the building to the curb. This dock is 75 feet long, 12 feet wide, and from 3 to 31⁄2 feet high, with cleated incline approaches at each end. On the same day defendants constructed a similar dock or platform on Broadway along the west side of the Mulligan building covering the entire sidewalk space and extending from the building to the curb. This dock is 62 feet long, from 11⁄2 feet to 5 feet 2 inches high, and was originally 172 feet wide, but later 7 feet were cut off the outer edge next to the curb. This dock also has cleated incline approaches at each end, and the north approach commences at the relator's property line. So that any one coming west along Sixth street on the sidewalk must, upon reaching the Mulligan building, either step out into the street and walk to the corner in the roadway or else climb up the cleated incline and pass along over the dock (if it is not occupied by defendants in loading and unloading merchandise). And if this traveler desires to continue north to relator's property, or if any one else desires to walk north along the east side of Broadway at Sixth street, he must either step out into

Much is said in defendants' behalf as to the power of the city to grant authority to construct obstructions that are not nuisances per se. But it is not necessary to go into that phase of the subject, since not only the photographs but also the testimony clearly shows beyond all question that the docks are public nuisances in and of themselves.

[2] The remedy sought by the respondent is the proper method to secure her rights. State v. Franklin, 133 Mo. App. 486, 113 S. W. 652.

[3] The city cannot grant a license to an individual or any private concern to obstruct the street in carrying on an occupation. Galloso v. Sikeston, 124 Mo. App. 380, 101 S. W. 715. An appropriation of the side

and Tenant, Cent. Dig. §§ 668-674, 676-679; [Ed. Note.-For other cases, see Landlord Dec. Dig. 8 167.*]


To make a landlord liable to a tenant or his servants, licensees, etc., for hidden or concealed defects existing at the time of the lease, the landlord must know thereof at such time, or have knowledge of facts from which he ought to know or will be presumed to have known of them.

walk, such as is shown here, is wholly in- | caused by defects existing at the time of the consistent with the paramount right of easelease. ment existing in the public and in adjacent property owners, and hence makes the docks unlawful and nuisances. City of Memphis v. Miller, 78 Mo. App. 67, loc. cit. 73. It is urged that these leading docks are business necessities. That may be, but that should have been thought of and provided for when the building was erected by so locating it as to have the docks on defendant's property instead of attempting to use the public sidewalk. Something is also said about the character of the neighborhood not now being as desirable as it once was, being given over to wholesale and manufacturing houses interspersed with saloons, foreign grocery stores, and other less respectable places. Because relator's property is located in a neighborhood that is becoming undesirable is no reason why defendants should be permitted to make it still less valuable. Removing this outrageous obstruction from the sidewalk will be at least one step toward rehabilitation of the locality.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 668-674, 676-679; Dec. Dig. § 167.*]



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In an action against the lessor of a garage for injuries to an automobile kept therein under a contract with the tenant, caused by the fall of the roof under the weight of rainwater collected thereon, evidence held insufficient to show that there were any hidden or concealed defects in the premises, or, if there were, that or should have known the landlord knew


[Ed. Note.-For other cases, see Landlord and The judgment of the learned chancellor is Tenant, Cent. Dig. §§ 644-646, 664-667, 681affirmed. All concur. 684; Dec. Dig. § 169.*]


(Kansas City Court of Appeals. Missouri. June 30, 1913.)


A servant, invited guest, licensee, or customer of a tenant injured while on the leased premises by reason of such relation, does not possess the rights given by law to members of the general public, but has only such rights as accrue by virtue of the contract with the tenant, and, as against the landlord, only such rights as the tenant has.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 668-674, 676-679; Dec. Dig. § 167.*]

Appeal from Circuit Court, Jackson County; Wm. O. Thomas, Judge.

Action by James F. Meade against Stephen V. Montrose. From a judgment for plaintiff, defendant appeals. Reversed.

Sparrow, Page & Rea, of Kansas City, for appellant. Edward J. White, H. H. McCluer, and Omar E. Robinson, all of Kansas City, for respondent.

TRIMBLE, J. Appellant is the owner of a building which he erected and rented to a tenant for a garage. Respondent placed his new automobile in this garage to be cared for by the tenant for hire. Plaintiff claims that in the erection of the building the flat roof thereof was not made strong enough,

2. LANDLORD AND TENANT (§ 125*)-CONSTRUCTION OF LEASE-IMPLIED COVENANTS. In the absence of any representation or and no sufficient outlet for rainwater falling agreement, there is no implied obligation or thereon was provided. During a rain, the warranty on the part of a landlord to his ten-water collected on the roof in such quantities ant that the premises are habitable or fit for that its weight, together with the insuffithe use to which the tenant intends to put


[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 441-443; Dec. Dig. § 125.*]

A lessee cannot assert a claim for damages
against the lessor on account of the condition
of the premises at the time of the demise, un-
less there is some hidden defect known to the
lessor at such time, but not apparent to the
lessee, of which the lessor is bound to inform

cient supports to the roof, caused one of them at the rear end of the building to give way, allowing that portion of roof supported by it to fall, damaging respondent's automobile, for which damage this suit is brought. The basis of the suit is the negligent, unsafe, and dangerous manner in which appellant built the roof, in that he failed to support it with materials of sufficient strength or number, and built it of poor materials, and so constructed the roof as to cause water from or[Ed. Note.-For other cases, see Landlord and dinary rainfalls to accumulate and remain Tenant, Cent. Dig. § 629; Dec. Dig. § 162.*] thereon, by reason of all which the roof fell. 4. LANDLORD AND TENANT (§ 167*)—INJURIES The answer contained a general denial, and FROM DEFECTIVE CONDITIONS LIABILITY. As a general rule, a lessor is not liable set up that the rain in question was of such for injuries to the person or property of any an unusual character as to constitute what is person who may be on the leased premises, to some minds irreverently termed an "act

the lessee.

of God." The reply denied this, and there | 78 N. E. 96, 7 L. R. A. (N. S.) 965, 114 Am. was no proof thereof. The jury returned a St. Rep. 631; Barman v. Spencer (Ind.) 49 verdict for $425 in favor of respondent.

[1] Whether a landlord is liable for an injury to a third person caused by a defect in the demised premises depends sometimes on what the landlord has agreed or undertaken to do in his dealings with his tenant, and sometimes on the status of such third per


N. E. 9, 44 L. R. A. 815. In the cases where the landlord undertook to repair, he is liable for negligence in doing so as for any other negligent act on his part resulting in injury to another. 1 Tiffany on Landlord and Tenant, 660.

Appellant insists that under the facts shown there is no liability upon him to respondent. In order to properly determine this question we must bear in mind, not only the nature and basis of the suit, but also the position and relation sustained by plain- Also, in the case before us, it must be retiff to defendant. The suit is one based on membered that the plaintiff is not a stranger, negligence; that is, want of ordinary care such as an adjacent property owner, or passin the erection of the building. The position er-by on the sidewalk, deriving his rights, by occupied by plaintiff is that of a guest, li- | operation of law, from his position as a memcensee, or customer of defendant's tenant, aber of the general public. Consequently the man named Flack. There is no privity of cases wherein a landlord has been held liable relation or contract existing between defend- to a stranger are not in point. Such cases ant and plaintiff. The former leased the are: Stoetzele v. Swearingen, 90 Mo. App. building to Flack with no representation or 589; Gordon v. Peltzer, 56 Mo. App. 599; warranty that the building was safe, nor Helwig v. Jordan, 53 Ind. 21, 21 Am. Rep. clause agreeing to keep it in repair. 189; Pickard v. Collins, 23 Barb. (N. Y.) 444. [2, 3] We come then to the question of defendant's liability within the precise limits presented by the facts in this case. The authorities are generally agreed that, in the absence of any representation or agreement to the contrary, there is no implied obligation or warranty on the part of the landlord to the tenant that the premises are habitable or fit for the use to which the tenant intends to put them. 1 Tiffany on L. & T. p. 556; McKenzie v. Cheetham, 83 Me. 543, 22 Atl. 469; Jaffe v. Harteau, 56 N. Y. 398, 15 Am. Rep. 438; Burdick v. Cheadle, 26 Ohio St. 393, 20 Am. Rep. 767; Towne v. Thompson, 68 N. H. 317, 44 Atl. 492, 46 L. R. A. 748; Hart v. Windsor, 12 Mees & W. 68; O'Brien v. Capwell, 59 Barb. (N. Y.) 497; Cowen v. Sunderland, 145 Mass. 363, loc. cit. 364, 14 N. E. 117, 1 Am. St. Rep. 469; Dyer v. Robinson (C. C.) 110 Fed. 99; Grant v. Tomlinson, 138 Mo. App. 222, 119 S. W. 1079. It follows from the above rule, and it is established by the authorities cited and others, that the lessee cannot assert a claim for damages against the lessor on account of the condition of the premises at the time of the demise. 1 Tiffany on L. & T. 559, and cases cited. This rule, however, is subject to an exception that, if there is some hidden defect known to the lessor at the time of making the lease, but which is not apparent to the intending lessee, the lessor is bound to inform the latter thereof, and if he fails to do so, he is liable to the tenant for injuries arising therefrom. 1 Tiffany on L. & T. 562, and cases cited.

If such third person is a stranger to both the landlord and the tenant, for instance, an adjacent or nearby dweller or property owner, or a passer-by on the adjoining highway, then both landlord and tenant may be liable to him for injuries caused by the defective condition of the building. But if the injured person is one who sustains only a private contractual relation with the tenant, and is injured only by being on the premises by reason of that relation, such as a servant, invited guest, licensee, or customer of the tenant, then his right to recover damages is ordinarily limited to the tenant, and only within certain narrow limits can that right extend beyond the tenant to the landlord. In such case the rights possessed by the injured person are not those given him by law as a member of the general public, but are those, and only those, accruing to him by virtue of his contract with the tenant. When this is the case, he has no greater rights against the landlord than the tenant has. Peterson v. Smart, 70 Mo. 34; Burdick v. Cheadle, 26 Ohio St. 393, 20 Am. Rep. 767. In the case now before us, the landlord had not agreed or undertaken to do anything with regard to the premises, so that feature of the case is eliminated; and therefore all cases in which the landlord in the lease either warranted or represented the premises to be in good condition, or agreed to keep them in repair and failed to do so, or undertook to repair them and did so negligently, are not applicable to the question here presented. Such cases are: La Brasca v. Hinchman, 81 N. J. Law, 367, 79 Atl. 885, where the landlord undertook to make repairs, but made them negligently; Meyers v. Russell, 124 Mo. App. 317, loc. cit. 328, 101 S. W. 606;

[4, 5] The same rules apply to persons other than the tenant rightfully on the premises by the tenant's request or permission. In every such case the landlord is liable in so far as he would be liable to the tenant, but no further. 1 Tiffany on L. & T. 649. And as regards defects existing at the time of the lease, the general rule is that the landlord is not liable for injuries to the person or property of any person who may

L. & T. 649, and cases cited supra. The had notice of their weakness, the defect was same exception to this rule exists as to hid- not hidden nor concealed, and defendant is den or concealed defects or dangerous condi- not liable under the authorities. tions existing at the time of the lease. But, in order to make the landlord liable for such hidden defects under such exception, it must be shown that they were known to him, or that they were those the existence of which he had reasonable grounds to suspect. 1 Tiffany on L. & T. 651, 652. The statement | contained in this last clause does not mean that if the landlord has no reason to suspect concealed defects or dangers, nevertheless he must make an examination in an effort to discover them, or else he will be held liable. It only means that if he had reason to suspect their existence, and did not exercise reasonable diligence to satisfy himself of their nonexistence before leasing, without mentioning the matter to his tenant, he will be liable. 1 Tiffany on L. & T. 567. So that the proper statement of the rule is that the landlord will not be liable for concealed defects or dangerous conditions existing at the time of the demise, unless he knew of the defects, or had knowledge of facts from which he ought to have known, or will be presumed to have known, of them.

Were the defects in the building in the case at bar concealed defects, and if so, did the defendant know of them or have knowledge of such facts as that he must be presumed to have known them?

But, even if it could be said that the defects were hidden, does the evidence show that defendant knew of them, or ought to have known of them in such way as to be liable? In Whiteley v. McLaughlin, 183 Mo. 160, 81 S. W. 1094, 66 L. R. A. 484, the defect was one of construction, and it was concealed by putty and paint, but the Supreme Court held that, unless the landlord knew of the defect, he was not liable, and that as there was a total failure of proof that he did know, plaintiff could not recover against him. The following cases hold that, to make a landlord liable for injuries resulting from concealed defects in the demised premises, it must be shown that the landlord knew of them at the time the lease was made or the tenant took possession, and that he failed to inform the tenant of them: Steefel v. Rothschild, 179 N. Y. 273, loc. cit. 279, 72 N. E. 112, 1 Ann. Cas. 676; Daley v. Quick, 99 Cal. 179, loc. cit. 183, 33 Pac. 859; Bowe v. Hunking, 135 Mass. 380, loc. cit. 381, 46 Am. Rep. 471; Cowen v. Sunderland, 145 Mass. 363, 14 N. E. 117, 1 Am. St. Rep. 469; Minor v. Sharon, 112 Mass. 477; Booth v. Merriam, 155 Mass. 521, 30 N. E. 85; Kern v. Myll, 94 Mich. 477, 54 N. W. 176; Davis v. Smith, 26 R. I. 129, 58 Atl. 630, 66 L. R. A. 478, 106 Am. St. Rep. 691; Anderson v. Hayes, 101 Wis. 538, 77 N. W. 891, 70 Am. St. Rep. 930; Moore v. Parker, 63 Kan. 52, 64 Pac. 975, 53 L. R. A. 778; Holzhauer v. Sheeny, 127 Ky. 28, 104 S. W.

concealed defects of which he has, or ought to have, knowledge, he is not bound to have knowledge of or foresee defective results from facts of which common experience would not warn him, and which only a specialist would apprehend. Cutter v. Hamlen, 147 Mass. 471, loc. cit. 472, 18 N. E. 397, 1 L R. A. 429; Com. v. Pierce, 138 Mass. 165, loc. cit. 179, 52 Am. Rep. 264. A landlord is not liable for damages to property in a building caused by the collapse of said building on account of inherent defects in the construction thereof at the time it was rented of which the landlord had no notice. Franklin v. Tracy, 117 Ky. 267, 77 S. W. 1113, 78 S. W. 1112, 63 L. R. A. 647; Shearman & Redfield on Neg. (5th Ed.) § 709; Shinkle v. Birney, 68 Ohio St. 328, 67 N. E. 715; 18 Am. & Eng. Ency. of Law (2d Ed.) 218; Smith v. Donnelly, 93 App. Div. 569, 87 N. Y. Supp. 893.

[6] In the first place it would seem from the testimony, though this is not perhaps very clear, that the supports for the roof could be seen by any one entering the build-1034. And while the landlord is liable for ing. The roof is described as resting upon these wooden supports; their number and distance apart are given, and the fact is also stated that they were measured. So that, if they were insufficient to support the roof either in size or number, such fact would not be concealed, but would be open to inspection and observation. Also the fact that there was but one down spout to carry off the water could be easily ascertained. Hence there is no affirmative showing on the part of the plaintiff that these were strictly concealed or hidden defects. In fact, there is an inference that they were not, because when defendant attempted to show that the supports were plainly to be seen, plaintiff objected and was sustained. There was no evidence that these supports were rotten, or worm-eaten, or that they appeared to be more massive than they were. If there was no deception about these supports, and nothing showing a defective or inferior quality of material composing them, but only that their strength was insufficient or finally proved so, then while such may be said to be a defect, and of such character as to be observable to defendant and put him upon inquiry and cause him to be presumed to know of them, they were also such as would give notice to the tenant;

There is no proof of concealed defects; but, should it be conceded that there was, there is no proof that the landlord knew of them, or ought to have known of them. The evidence in this case shows that the defendant was not a contractor or builder, but was engaged in an entirely different occupation. He employed a contractor and builder of 30

Kansas City; and it was shown that this contractor had erected 40 or 50 buildings a year, ranging from $500 to $50,000 in cost, and many of them having flat roofs as this one had, and that he drew the plans for many of them. Defendant offered to show that he made inquiries as to the contractor's ability and competency to plan and erect the building, and that he received full assurances in this regard, and was assured that the contractor was also an architect. But all this was objected to and excluded. He also of fered to show that the plans and specifications were in accordance with the requirements of the city in reference to buildings, and that the city building inspector inspected the building a number of times, and approved the way it was being constructed as being in accordance with the plans required by the city superintendent of buildings. But this offer was refused. The case seems to have been tried by respondent as if he were a member of the general public and had been injured by a violation of a public duty owed by the landlord, but, as stated before, respondent does not stand in that relation. His rights are derived from and grow out of his contract with the tenant, and with him alone. Neither is the suit brought on the ground that the landlord had erected a nuisance, but on the theory that he was liable on the ground of negligence; that is, for a want of reasonable and ordinary care in erecting said building. There is a distinction between suits grounded in negligence and those based on the erection of a nuisance. In the latter, negligence is not an essential element, and the liability is of the character of an insurer. In the former, the question is whether the required degree of care has been exercised. Casey v. Bridge Co., 114 Mo. App. 47, loc. cit. 61, 89 S. W. 330. In the latter, liability is independent of negligence. 1 Tiffany on L. & T. 659. Besides, the principles applicable to nuisances have no operation here in the light of the facts.

Complaint is made of certain instructions. It is not necessary to notice them, since the point above discussed disposes of the case. There are no facts shown upon which appellant's liability can be predicated. The case is therefore reversed. All concur.

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tained while on the sidewalk in front of the In an action against a city for injuries suscity market house, by a ladder, which lay on the sidewalk between the pedestrian and the team entrance, one end projecting into the team negligently placed and carelessly permitted the entrance, the petition alleged that defendant ladder to be placed upon its sidewalk at the time and place aforesaid, when it should have known that the ladder, if allowed to be placed in such position, would render the sidewalk dangerous to pedestrians, and further negligently permitted the ladder to remain in such position for a sufficient length of time after it moved it and thus rendered the sidewalk at should have known of its position to have rethat point safe for travel, all of which, however, it negligently failed to do. Held, that the negligence alleged was in keeping the ladder in the space between the vehicle entrance and the pedestrians' entrance to the market house where it would be in the way of pedestrians or vehicles; the intermittent obstruction of each entrance by shoving the ladder clear of one entrance and then of another, as was done, not constituting independent wrongs, but being a natural result of keeping the ladder where it would obstruct the passageways.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1711-1716, 1718, 1720-1723; Dec. Dig. § 816.*]



It is the duty of a city market master and his assistants to exercise reasonable care keep the interior of the market house and its entrances in a reasonably safe condition and prevent the entrances from being blocked so as to endanger street pedestrians.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1612-1615, 1807; Dec. Dig. §§ 750, 763.*]


In an action against a city for personal the sidewalk near the pedestrians' entrance to injuries by a ladder, one end of which lay on the market house, and the other end lay in the vehicle entrance, by a vehicle striking the ladder and knocking it against plaintiff, evidence as to the character of the use of the building and the street and of the number of city employés on duty around the building, and their duties with respect to obstructions, was admissible on the issue of notice to the city. Corporations, Cent. Dig. §§ 1726-1738; Dec. [Ed. Note.-For other cases, see Municipal Dig. § 818.*]


In an action against a city and the persons whose wagon struck a ladder which was lying in the entrance to a market house, knocking it against plaintiff and injuring her, instructions given for plaintiff were not affirmatively erroneous for not including a hypothesis based on the negligence of the wagon driver alone.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 477-479; Dec. Dig. § 203.*] 6. TRIAL (§ 252*)-INSTRUCTIONS.

In an action against a city and others for personal injury in which all defendants were charged with negligence, a requested instruction, that if the finding was in favor of the other defendants the verdict should also be for the city, was properly refused, where there was

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