Bailey v. Kelly

• Decision Date: 06 April 1912
• Docket Number: 17,565
• Citation: 122 P. 1027,86 Kan. 911
• Parties: MILTON E. BAILEY et al., Appellants, v. JOHN KELLY, Appellee
• Court: Kansas Supreme Court

122 P. 1027

86 Kan. 911

MILTON E. BAILEY et al., Appellants, v. JOHN KELLY, Appellee

No. 17,565

Supreme Court of Kansas

April 6, 1912

Decided January, 1912.

Appeal from Cloud district court.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. LANDLORD AND TENANT--Dangerous Nuisance--Liability of Landlord. Where a nuisance dangerous to life is created by the owner on his premises, or through his gross negligence is suffered to remain there, he can not by leasing the property to another avoid his own liability to any person who is rightfully upon the premises and who, without fault, is injured by reason of such nuisance; and this liability extends to a servant of the tenant, notwithstanding the tenant, by reason of his own fault or neglect or knowledge of the danger, could not have maintained an action against the owner for any injury suffered by himself.

2.LANDLORD AND TENANT Leased Premises--Dangerous Nuisance--Notice to Landlord. In such a case it is for the jury to determine whether or not the owner knew of the dangerous condition of the premises at the time of the letting, or in time to have abated the nuisance before the injury occurred, or should have known it by the exercise of ordinary care.

Charles L. Hunt, Park B. Pulsifer, A. M. French, and A. L. Wilmoth for the appellants.

F. W. Sturges, Fred W. Sturges, jr., and Theo Laing, for the appellee.

OPINION

PORTER, J.:

On October 4, 1909, the daughter of the plaintiffs, a girl of sixteen years, was drowned in a cistern on premises belonging to the defendant. At the time of the accident she was a servant in the employ of persons who occupied the premises as tenants of the defendant. The parents sued the owner of the property to recover damages upon the ground that he was negligent in permitting the cistern to be and to remain with a dangerous and insecure covering. The court sustained a demurrer to the evidence and the plaintiffs appeal.

In the rear of the premises there was a large shed in which there was a cistern twenty feet deep and eight feet in diameter. The water in the cistern was twelve feet deep. The wooden platform over the cistern was raised a few inches above the level of the ground, there being no floor in the shed. Sometime prior to the fall of 1907 an opening had been cut in the platform. The cover to the opening consisted of a window sash, which was about two feet wide and two feet eight inches long, from which the glass had been removed and upon one side of which sheet iron was nailed. The cover was but little larger than the opening and there was no way of fastening it to the platform; it lay loosely over the opening and was easily slipped off or to one side. Water was drawn from the cistern by lowering a bucket through the opening. In December, 1907, the defendant leased the premises to Watson for the purpose of being used as a restaurant. The cover of the cistern remained in the same condition from the time of the letting until the accident, after which hinges and clasps were put on, by which it could be fastened in place. The shed in the rear of the restaurant was used by the tenants for the purpose of storing supplies and for doing laundry work, water from the cistern being used for laundry purposes. The plaintiffs' daughter, who had been in the employ of the tenant about four weeks, went from the kitchen to the shed to get supplies for the restaurant. In doing so she stepped upon the insecure cover, which tilted and threw her into the cistern and she was drowned.

The trial court sustained the demurrer on the sole ground that the action could not be maintained because the daughter, if she had survived, could not have recovered from the landlord for injuries received while a servant of the tenant caused by the defective condition of the premises or the failure of the landlord to repair.

From the evidence it appears that the defendant purchased the property in January, 1906. The cistern was made by a former owner in 1895. In 1907 a tenant, who occupied a part of the premises and who had been using the cistern in connection with a barber shop, pulled up the pump and abandoned the use of the cistern. He left the platform as it had been up to that time, with a small opening just large enough for a four-inch pipe. The evidence does not show who caused the larger opening to be made, or who provided the defective cover, but the platform, the opening and the cover were in the same condition when the premises were leased to Watson in December, 1907, as they were when the accident occurred. In order to show that the defendant knew of the condition of the cistern, the tenant, Watson, was called as a witness. He testified that at the time he went into possession the defendant did some painting about the house and was there when the witness was using the cistern to get water to wash the floors and windows. He also testified that he examined the premises himself at the time he leased the place, and that from about the time he took possession he knew the condition of the cistern, and that there was nothing about it that led him to believe it to be dangerous; that on the day of the accident he was helping his wife with the laundry work and had been drawing water from the cistern for washing, and that, so far as he knew, Jennie Bailey, the girl who was drowned, never drew any water from the cistern. There was no evidence to show that she knew of the dangerous condition of the cover except that she had been employed there for four weeks before the accident, and that she and the other employees went in and out and had opportunity to see the premises.

As between landlord and tenant, where there is no fraud or false representations or deceit, and in the absence of an express warranty or covenant to repair, the law has always been that there is no implied contract that the premises are suitable or fit for occupation, or for the particular use intended, or that they are safe for use. (Moore v. Parker, 63 Kan. 52, 64 P. 975, 53 L. R. A. 778; Bowe v. Hunking, 135 Mass. 380; O'Brien v. Capwell, [N. Y. Supr. Ct.] 59 Barb. 497; Jaffe v. Harteau, 56 N.Y. 398; Eakin v. Brown, [N. Y. C. P.] 1 E.D. Smith 36; 1 Taylor, Landlord and Tenant, 9th ed., § 175a.) The rule generally is that the occupant and not the owner is responsible to third persons for injuries caused by the failure to keep in repair. (1 Thompson, Com. on the Law of Neg. § 1155; 1 Pingrey on Real Property, pp. 617, 618, 623.)

There are certain exceptions to the rules exempting the landlord from liability for injuries to third persons caused by defective conditions in leased premises. One of them, relied upon by the appellant, is where the premises are let with a nuisance upon them which is the cause of the injury complained of. A nuisance may result from nonfeasance or negligence as well as from misfeasance or malfeasance. (Wood on Nuisances, 3d ed., ch. 1.) If there is a dangerous nuisance. on the premises the owner can not avoid liability to a third person for damages resulting from a continuance of the nuisance which it was his duty to abate. (1 Thompson, Com. on the Law of Neg. § 1158; Knauss v. Brua, 107 Pa. 85; Irvine v. Wood et al., 51 N.Y. 224; Waggoner v. Jermaine, [N. Y. Supr. Ct.] 3 Denio 306; Fish v. Dodge, [N. Y. Supr. Ct.] 4 Denio 311; Rosewell v. Prior, [Eng.] 2 Salk. 459; Clark v. Fry, 8 Ohio St. 358; Stephani et al. v. Brown, 40 Ill. 428; City of Peoria et al. v. Simpson, 110 Ill. 294.) The rule is well settled, however, that when the property does not constitute a nuisance when demised, but becomes so only by the act of the tenant, the owner will not be held liable. (Joyce v. Martin, 15 R.I. 558, 10 A. 620; Rankin v. Ingwersen, 49 N.J.L. 481, 10 A. 545; Kalis v. Shattuck, 69 Cal. 593, 11 P. 346; Shearman & Redfield on the Law of Neg., 5th ed., § 120.)

The doctrine of caveat emptor does not apply where there is any dangerous defect in the demised premises not easily discoverable, and if the landlord knows of such defects the duty rests upon him to notify the lessee. (Moore v. Parker, 63 Kan. 52, 64 P. 975, 53 L. R. A. 778; Meyers v. Russell, 124 Mo.App. 317, 101 S.W. 606; Sunasack v. Morey, 196 Ill. 569, 63 N.E. 1039; Morgan v. Sheppard, 156 Ala. 403, 47 So. 147; Cate v. Blodgett, 70 N.H. 316, 48 A. 281.) A distinction, of course, is made between cases where the construction of the premises is such that they can not be used at all for the purpose intended by the tenant without creating a nuisance, and those where the nuisance arises from an improper use of the premises by the tenant. (1 Thompson, Com. on the Law of Neg. § 1158; Pickard v. Collins, [N. Y. Supr. Ct.] 23 Barb. 444.) In most of the cases holding the landlord liable because of leasing the premises with an existing nuisance which has caused the injury, it will be found that the defective or dangerous condition created what is usually termed a public nuisance, such as an unguarded excavation on a public street or so near thereto as to become dangerous to the public. Such are the following cases: Stephani et al. v. Brown, 40 Ill. 428; Hart v. Mayor, &c. of Albany, (N. Y. Supr. Ct.) 9 Wend. 570; City of Peoria et al. v. Simpson, 110 Ill. 294; Owings v. Jones, 9 Md. 108; Dalay v. Savage, 145 Mass. 38, 12 N.E. 841.

Others proceed upon the proposition that the premises were leased with the expectation that they would be used and frequented by the public, such as a wharf or pier or place of amusement. (Albert v. State, use of Ryan, 66 Md. 325, 7 A. 697 -- wharf.) In Swords v. Edgar et al., 59 N.Y. 28, 17 Am. Rep. 295, a leading case very frequently cited, the action was against the landlord who leased a pier when it was defective, and it was held that he was liable to a third person who entered upon it and was...