Dier v. Mueller , 53 Mont. 288 ( 1917 )

ME. CHIEF JUSTICE BEANTLY

delivered the opinion of the court.

This is an appeal from a final judgment in favor of defendant rendered after an order sustaining his demurrer to plaintiff’s complaint. The averments of the complaint may be epitomized as follows:

The plaintiff and her husband were tenants of the defendant, occupying the property at No. 623 South Idaho Street, in Butte. These premises consist of a one-story brick dwelling-house of four rooms with a porch, and the lot upon which it is situated. The porch is about two feet above the ground, and was used by the plaintiff and other members of the family as occasion or necessity required. The tenancy was from month to month. During its continuance the porch fell into disrepair, in that one of the boards in the floor became weak and insufficient in strength to hold the weight of a person who chanced to step on it. The defendant was notified of the condition and promised to cause the nécessary repairs to be made more than a month prior to plaintiff’s injury. Notwithstanding his promise, defendant failed and neglected to cause the repairs to be made. On July 22, 1914, the plaintiff stepped on the defective board which, because of its weakened condition, gave way under her weight, whereby she was thrown to the floor, sustaining a fracture of her right leg and other injuries which she believes to be permanent. She seeks to recover $5,000 as general damages, and $300 for expense incurred for medical treatment.

[1] The demurrer presents the single question whether the complaint states a cause of action. The solution of this in: quiry depends upon the proper interpretation of sections 5226 and 5227 of the Revised Codes. In Van Every v. Ogg, 59 Cal. 563, the supreme court had occasion to determine the purpose and scope of sections 1941 and 1942 of the Civil Code of California, which are identical with our own supra. In that ease the contention was made that section 1941 (Rev. Codes, sec. 5226) by operation of law inserts in every lease a covenant to repair. In disposing of the contention the court said: “But bearing in mind that at the common law no such covenant was implied, and reading the two sections together, the intent seems clear that the obligation' of the landlord should be limited by the-extent of the privilege conferred upon the tenant: that it is the duty of the landlord to repair upon notice, and if he does not perform his duty he is to be compelled to pay, by deduction from the rent, to the extent of a month’s rental — or, at the option of the tenant, the term be concluded without redress to the landlord.” Following this decision down to the date the provisions were incorporated in our own Codes, the California court consistently adhered to this construction of them. In Bush v. Baker, 51 Mont. 326, 152 Pac. 750, referring to these provisions, this court said: “These sections, as we are told in the report of the Code Commission, were taken from California, and investigation discloses that they came to us with a construction upon them which leaves no room for doubt. (Van Every v. Ogg, 59 Cal. 563; Sieber v. Blanc, 76 Cal. 173, 18 Pac. 260; Callahan v. Loughran, 102 Cal. 476, 36 Pac. 835.) This construction is to the effect that, if the landlord fails to repair after notice, the tenant may himself repair, within a certain limit, or move out; but he has no redress in damages for injury to person or property consequent upon the landlord’s failure to repair. Whether this construction be right or not, it was presumably adopted with the sections themselves, it constitutes a rule of property, and the courts of this state are without authority to alter it.” This decision is determinative of this case.

The judgment is affirmed.

Affirmed.

Mr. Justice Sanner and Mr. Justice Holloway concur.