The plaintiff notified the defendant lessor, through its agent, the Wall Realty Company, that certain planks on the back porch of the apartment leased by the plaintiff had rotted out, that portions of the railing along the back stairs had rotted out, and that several of the lower treads in the flight of stairs leading from the second floor to the third floor and connected with the back porch of the leased premises appeared to be decayed and in bad repair. After this notice was given the landlord sent the defendant Wade "to inspect and repair the back porch of the premises leased to the plaintiff and the stairway leading thereto." The petition does not allege that the agent Wade had agreed with the landlord to make any inspection or repairs, but he was "sent" and he "replaced certain rotten planks in the back porch and replaced certain of the rotted treads in the stairway leading to the back porch." It was alleged in the petition that "several of the lower treads in the flight of stairs leading from the second floor to the third floor and connected with the back porch of the leased premises appeared to be decayed and in bad repair." After these repairs were made there was nothing to indicate to the plaintiff that the back porch and the stairs adjacent to it were not safe for use, but, according to the petition, the top tread of the stairway, while presenting an appearance of being safe, being covered with a coat of paint, was rotten and unsafe and was not repaired or replaced. This tread had rotten out on the underside, a condition not apparent to one using the tread, and the plaintiff, relying, as *Page 137 he had a right to do, on its being safe for use, stepped upon it in descending the stairway and was injured in the manner described in the petition.
The petition does not specifically allege any attempt on the part of the agent to inspect or repair the top tread. It does allege, after mentioning the repairs that were made, that "the steps were negligently inspected and repaired." Whether thereby is meant that the inspection and repairing were negligently done, in respect to undertaking to inspect and repair the steps as a unit, or merely that the inspection and repairing were negligently done, in that no attempt was made to inspect or repair the top tread, is left in ambiguity and doubt. But as it is alleged that the top tread was not repaired or replaced, a proper construction on demurrer would be that it was neither inspected nor repaired. This view is strengthened by the fact that it was alleged that "an inspection of the underside of the tread would have shown clearly that the tread had rotted out and was unsafe for use" and by the subsequent specific allegation of negligence against the agent, "said defendant, Clyde Wade, was negligent, in that he failed to properly inspect the stairs leading to the rear porch of the apartment leased by your petitioner, and in failing to so repair them as to make them safe for use." In other words, Wade did not "properly inspect" the stairs and "so repair them as to make them safe for use," because he failed to inspect or repair the top tread which caused the plaintiff's injury. That is to say, Wade did not undertake to inspect or repair the top tread, and his conduct was merely that of nonfeasance and not misfeasance. If he had undertaken to inspect and repair the top tread, and in executing the work had acted negligently with respect to the plaintiff, he would have been liable for his injury and damage, notwithstanding that he had not agreed with his principal to undertake such work of inspecting and repairing the top tread and was under no original obligation to the plaintiff, by reason of his alleged agency, or being "sent," to do anything with respect to the top tread or any part of the premises. I think that, construing the petition most strongly against the plaintiff on general demurrer, the alleged dereliction of the agent was inaction or nonfeasance and not misfeasance in undertaking to inspect and repair the top tread and failing to do so with proper regard for the safety of the plaintiff, and, under the above cited authorities, no *Page 138 liability against the agent is shown. Accordingly, I think that the trial court did not err in sustaining his general demurrer and in dismissing the petition as to him.