Awad v. McColgan, s. 6
| Decision Date | 13 October 1959 |
| Docket Number | Nos. 6,7,s. 6 |
| Citation | 98 N.W.2d 571,357 Mich. 386 |
| Parties | Stella AWAD, Plaintiff-Appellant, v. Arthur J. McCOLGAN and Elizabeth McColgan, his wife, Marion R. Schoch, and Gabriel H. Schoch, his wife, Ida McColgan, Elizabeth McColgan, Arthur McColgan and Sue R. McColgan, his wife, Roy J. McColgan, Jr., and Rita R. McColgan, his wife, Defendants-Appellees. Ally AWAD, Plaintiff-Appellant, v. Arthur J. McCOLGAN and Elizabeth McColgan, his wife, Marion R. Schoch, and Gabriel H. Schoch, his wife, Ida McColgan, Elizabeth McColgan, Arthur McColgan and Sue R. McColgan, his wife, Roy J. McColgan, Jr., and Rita R. McColgan, his wife, Defendants-Appellees. |
| Court | Michigan Supreme Court |
Heilman & Purcell, Saginaw, for plaintiffs-appellants. Maurice C. Perkins, Saginaw, of counsel.
Stanton & MacKenzie, Saginaw, for defendants-appellees.
Before the Entire Bench.
Defendants were the owners of a building in saginaw, comprising a restaurant on the ground floor and living quarters on the floor above. They had leased the upper floor to Ally Awad, plaintiff herein, for some seven years prior to the accident. At the rear of the building there was a porch, with steps leading to the ground. Mr. Awad had complained to the owners that the porch and steps, which were obviously in process of deterioration, needed repairs. These they agreed to make, but did not. The porch later collapsed, injuring Stella Awad, his wife. 1
The declaration charged in part as follows:
'That plaintiff was free from any negligence and/or contributory negligence in the premises, and her injuries were caused by a breach of the covenants to keep said premises in repair by said defendants and/or their negligence in allowing said premises to become so dilapidated and run down as to constitute a nuisance and a dangerous instrumentality to those having a right to use the same.'
During the trial, however, after deliberations which were apparently not reported, the following was placed in the record by the trial court:
'The Court: Let the record show that plaintiffs' counsel has indicated that plaintiffs will abandon the contract theory and wish to go the jury only on the nuisance theory.'
The jury were subsequently instructed, in substance, that a verdict might be returned in favor of plaintiffs if they should find (a) that defendants had permitted the porch to deteriorate to such a dangerous condition that it constituted a nuisance, (b) that defendants knew, or in the exercise of reasonable care should have known, of the existence of the said condition, (c) that Stella Awad exercised reasonable care for her own safety, and (d) that the said condition was the proximate cause of the injuries sustained. A general verdict was returned in favor of plaintiffs. The court below granted a motion for judgment non obstante veredicto and plaintiffs have taken an appeal.
We note in passing that exactly what plaintiffs' nuisance theory comprehended was never made clear to the trial court 2 nor has the obscurity been relieved in proceedings before this court.
We thus approach the theory of nuisance ab initio. Nuisance is the great grab bag, the dust bin, of the law. 3 It comprehends interference with an owner's reasonable use and enjoyment of his property by means of smoke, noise, or vibration; the obstruction of private easements and rights of support; interference with public rights, such as free passage along streams and highways, the enjoyment of public parks and places of recreation, and, in addition, activities and structures prohibited as statutory nuisances. Negligence is not necessary to nuisance, though many wrongs thus denominated are made so through the defendants omitting to perform a duty, such as Mr. Justice Cardozo's example of 'The coal hole, built under a license, [which] may involve a liability for nuisance, if there is negligence in covering it * * *.' 4 It may be either public or private, and there is no need that we here enumerate the distinctions. In short, nuisance, as was well put by Thayer, 5
Let us see, then, in what respects, if any, the defendants have violated the rights of the plaintiffs. Mrs. Awad was injured when the porch of the premises she occupied as a tenant collapsed. This does not impose liability upon the landlord. A tenant may rent tumble-down property if he wishes and if it does in fact tumble down during his occupancy, the landlord, without more, is not liable. Statutes may conceivably affect such result, particularly that act known as the housing law, 6 but the act was not in effect in this area, nor are we cited to any ordinance similar in scope. But we have more in this case than mere tenancy. We have a promise by the landlord to repair, and he did not. There thus may be a cause of action for breach of contract but in our jurisdiction it has been settled law for some time that, in the words of Mr. Justice Wiest, in Kuyk v. Green, 219 Mich. 423, 425, 189 N.W. 25, 'an action in tort cannot be predicated, by a tenant, upon a breach by the lessor of an...
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... ... widely varying reasons the thing stigmatized as a nuisance violates the rights of others.' " Awad v. McColgan, 357 Mich 386, 389-390, 98 NW2d 571 (1959) ... [430 Mich. 151] ... Peterson, 381 Mich. 445, 465, 164 N.W.2d 43 (1969). 6 ... Two additional categories are nuisance per se and nuisance in fact or "per ... ...
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...Board for their profound dedication and commitment toward achieving excellence in each aspect of this Law Review. (1.) Awad v. McColgan, 98 N.W.2d 571, 573 (Mich. 1959), abrogated by Mobil Oil Corp. v. Thorn, 258 N.W.2d 30 (Mich. (2.) Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1055 n.19 ......