delivered a dissenting opinion.
I am unable to agree with my learned associates in the conclusion reached by them in this cause, and deem it contrary to the decisions, heretofore rendered in Peterson v. Smart (70 Mo. 38), Rogan v. Dockery (23 Mo. App. 313), and Joyce v. DeGiverville (2 Mo. App. 596).
It seems to be conceded on all hands that, in the absence of a special contract imposing that duty on him, the landlord is not bound to keep the rented premises in repair, and is, therefore, not liable in damages to his tenant for an injury resulting from a dilapidation of such premises. But my learned associates find that the rule does not apply in this case, because the wall which fell, and caused the injury as a consequence of its fall, was not a part of the rented premises, . was not within the possession or control of the tenants, and was within the exclusive possession, and control of the landlord. If these propositions are all true, then the majority conclusion is unquestionably right. But they are not true, as I understand the testimony in the record, and the law .applicable thereto.
The testimony shows that the tenants occupied a room on the second floor of the building, to which they had access by a stairway running up through a hall on the east side of the house. This stairway was supported upon joists whose ends were lodged in the two walls which made the hall. The west, or outer wall of the hall, was the one which fell, in consequence of excavations made for a new building adjoining it on the west. It thus appears that the stairway was necessary to the *127tenants’ enjoyment of their room, and that its nse by them was implied in their contract of renting. Their rights in the stairway were identical with their rights in the joists which supported it, and in the wall which held the joists. For, neither one of these three structures could be available for the uses of the tenants, without the two others. There was a direct and necessary connection and dependence between each, or all of them, and the enjoyment of the room rented. Thus, while treating of the rule that a landlord is not bound, without a special contract, to keep in repair the rented premises, the court said, in Purcell v. English (86 Ind. 34): “The duty of the tenant to keep in safe condition, for his own use, the demised premises, extends to all the appurtenances connected therewith, and this includes steps, stairways, and other approaches.” In Krueger v. Ferrant (29 Minn. 385) the same principle was applied to a leaking roof, where the complaining tenant occupied a room, on the ground floor and other- tenants occupied the second floor, between him and the ro'of. Said the court: “The rule appears to be well established that there is no implied covenant on the part of the landlord to make repairs, or that the premises are, or will prove to be, suitable for the tenant’s use or business. There seems to be no sound reason why this rule should not extend in like manner to portions of the premises not expressly demised to the tenant, but which are necessary for his use or protection ; as, in this case, the common roof.” A number of authorities are there cited in support of these propositions. I think it is quite clear that the falling wall in the present case, was necessary for the use and protection of the tenants and that it comes literally within the reasoning and the conclusions of the cases above mentioned.
It results that the defendant’s liability in this case is not to be tested by the responsibilities borne by an owner of property towards a stranger, but must be determined by the law attaching to the relation of landlord and tenant, where there is no covenant for repairs *128by the landlord. If I rightly understand the majority opinion, it assumes that”the landlord’s exemption from liability in such cases is grounded chiefly upon two propositions: (1) that the tenant has, while the landlord has not, possession and control of the part of the rented premises whose dilapidation caused the injury complained of; (2) that the tenant himself is bound to keep the premises in repair. As to the first proposition I do not find that the authorities generally recognize it as an effective reason for the non-liability of the landlord. Krueger v. Ferrant (29 Minn. 385) was decided in favor of the landlord, and yet the court held that the jury were rightly instructed “that the roof of the demised premises was in the charge of the landlord.” So it was not because he had no control or possession of the leaking roof, that he was exonerated from liability, but for a very different reason, which will presently appear. The second proposition appears in many of the decisions as a remark incidental to the course of the argument, but not, so far as I can find, as having a controlling weight. The proposition is, on its face, palpably inaccurate. The tenant is not bound to keep the premises in repair. He can submit to the inconveniences of non-repair as long as he likes, without violating any obligation to the landlord or to any body else.
The true and controlling principle of the landlord’s exemption from liability in the cases supposed lies in his contractual relation with the complaining tenant. His responsibilities to the tenant, as to everything relating to the enjoyment of the rented premises, are limited by the terms of his contract, and he can not be held to anything beyond those terms, unless in certain exceptional matters which have no pertinence to the present discussion. This, as it seems to me, after a careful examination of the authorities, is the real ground-work of all the leading decisions. The potency of this principle is illustrated by the remarks of the Minnesota Supreme Court, in Krueger v. Ferrant (29 Minn. 385): “The tenant is the party most interested in *129understanding the risks which be will assume in exposing his goods to injury from tbe elements. It is incumbent upon him to exercise proper care and precaution in tbe selection and leasing of tenements to be occupied by Mm. It is bis right, and prdinarily bis duty, to insist tbat be be permitted to inspect those portions of tbe premises which may be important to him, and to require tbe. proper stipulations in tbe contract for bis protection. Taylor Land. & Ten. sect. 175a; Carstairs v. Taylor, L. R. 6 Exch. 217; Keates v. Earl of Cadogan, 10 C. B. 591, 601.” So, in Rogan v. Dockery (23 Mo. App. 316), this court said, “bis [the landlord’s] liability to strangers is grounded on tbe general duty tbat is formulated in tbe maxim, sic utere tuo ut alienum non laedas, of so using bis property as not to injure that of others. But bis obligation to bis tenant rests in contract only, and, in tbe absence of a statute, or of an express agreement, is governed by the implication which tbe law annexes to tbe contract, which is, tbat the tenant is willing, for tbe rent agreed to be paid, to take tbe premises as be finds them, subject to any inconveniences or dangers which may attend bis occupancy of them.” Many other authorities might here be cited to tbe like effect.
Tbe disaster which was productive of injury in tbe present case was not caused by any act or omission on tbe part of tbe landlord, which could render him responsible as for a breach of duty. Tbe tenants, when they rented tbe premises, could see for themselves tbe stairway, ball, and other conveniences which would be necessary or useful in their occupancy of tbe room. Tbe stairway and its supports, including tbe west wall, were before them, and they might easily have stipulated for repairs or indemnity in the event of any failure or dilapidation affecting any of these structures. They did not elect to do so, but took the premises as they found them, “subject to any inconveniences or dangers which might attend their occupancy.” Tbe ball itself *130was necessary to the occupancy and enjoyment of the rented premises, and was, therefore, implicated in the contract of renting. The hall was constructed of the walls which bounded it. The falling of one of these walls was the destruction of the hall, and, therefore, of a part of the premises concerning which the landlord’s liability was limited by the terms of his contract. To my mind it is perfectly clear, upon principle, and from all the weight of authority, that, in this case, the landlord is under no legal responsibility for the consequences of an accidental disaster which caused injury to his tenants.
I think, therefore, that the judgment of the circuit court ought to be reversed, and that the cause, as decided by the majority of this court, should be certified for final determination by the Supreme Court, in accordance with the constitutional amendment adopted in November, 1884.