Bailey v. Kelly

• Decision Date: 09 January 1915
• Docket Number: 19,099
• Citation: 93 Kan. 723,145 P. 556
• Parties: MILTON E. BAILEY and LOUISA R. BAILEY, Appellees, v. JOHN KELLY, Appellant
• Court: Kansas Supreme Court

145 P. 556

93 Kan. 723

MILTON E. BAILEY and LOUISA R. BAILEY, Appellees, v. JOHN KELLY, Appellant

No. 19,099

Supreme Court of Kansas

January 9, 1915

Decided. January, 1915.

Appeal from Cloud district court; JOHN C. HOGIN, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

LANDLORD AND TENANT--Dangerous Cistern--Injury to Servant of Tenant--Landlord Not Liable. A landlord leased vacant property upon which there was a cistern covered by a loose lid lying upon a slightly raised platform. The lease was without warranty or covenant to repair on the landlord's part. The covering of the cistern was exposed to plain view and its character was observed by the tenant when he entered. The tenant used the cistern for nearly two years in this condition, when on a laundry day the lid was not carefully replaced after a drawing of water and a servant of the tenant stepped on a corner of the lid lying over the opening into the cistern, was precipitated into the cistern, and was drowned. The cistern was located in a shed in the rear of the kitchen of a building used by the tenant for a restaurant. When the deceased commenced working for the tenant he pointed out to her the location of the cistern, but in six weeks' service which occasionally brought her in proximity to the cistern the fact that the lid was loose was not brought to her attention. It is held: (1) The landlord is not liable in damages for the death of the servant upon the theory that the cistern was a nuisance, or upon the theory that he was guilty of actionable negligence, or upon any other theory sustained by existing law; (2) the decision of this court rendered upon the occasion of a former appeal (Bailey v. Kelly, 86 Kan 911, 122 P. 1027), holding the landlord liable, is overruled.

Theo. Laing, F. W. Sturges, Fred W. Sturges, jr., all of Concordia, C. L. Kagey, and R. M. Anderson, both of Beloit, for the appellant.

Park B. Pulsifier, Charles L. Hunt, A. L. Wilmoth, and A. M. French, all of Concordia, for the appellees.

Burch, J. Johnston, C. J., Mason, J., and Benson, J., dissenting.

OPINION

BURCH, J.:

This case was before the court on the occasion of a former appeal. (Bailey v. Kelly, 86 Kan. 911, 122 P. 1027.) The action was commenced against a landlord to recover damages resulting from the death of his tenant's servant who fell into a defectively covered cistern on the leased premises. The cistern was in a shed in the rear of the kitchen of a building used as a restaurant. The defect in the covering of the cistern existed at the time the premises were leased, was open to view, and the character of the covering was observed by the tenant when he took possession. The lease was without warranty and without covenant to repair, on the landlord's part. At the first trial the court sustained a demurrer to the plaintiff's evidence on the ground that the landlord rested under no liability. This court held otherwise, as indicated in paragraph one of the syllabus of the first opinion.

"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." (Syl. P 1.)

At the second trial the court, after it had overruled a demurrer to the plaintiff's evidence, instructed the jury in accordance with this decision and a verdict was returned for the plaintiff. The defendant appeals and renews his contention that the law does not authorize the recovery of damages from him.

A majority of the members of the court are convinced that the former decision was wrong. That the former decision was substantially unsupported by authority and was rendered against the settled law of this country is clear. (Notes, 34 L. R. A., 824; 34 L.R.A. N.S. 798; 39 L.R.A. N.S. 378; 48 L.R.A. N.S. 917; 50 L.R.A. N.S. 286; see, also, 49 L.R.A. N.S. 1120.) The notes cited refer to others and present a comprehensive view of the case law on the subject.

The court was conscious of the fact that it was extending the liability of the landlord as that liability had been previously understood, but believed the extension to be justifiable. The distinction between the undefined body known as the public and a group of persons comprising a restaurant keeper, his family, and his employees becomes quite shadowy. That such a group, composed in part of persons drawn from the general public, would be assembled on the premises by the tenant was fairly within the landlord's contemplation. When the landlord takes rent for premises containing a public nuisance he is liable. In this case the landlord took rent for the use of premises containing a pitfall which a portion of the public selected by the tenant was obliged to encounter. Consequently the court applied the nuisance theory and held the defendant liable.

The difficulty with this decision is that it is not closely discriminative with respect to facts, ignores ideas of legal duty which experience has demonstrated to be well founded and fair, and involves the law in confusion concerning some of its fundamental principles.

A description of the leased premises appears in the former opinion (86 Kan. 911), and need not be repeated in full. The cistern was covered by a wooden platform about four feet square, raised four inches from the ground, upon which the lid or covering lay. The structure was in plain view, and the lid was adequate as a covering. Its only defect consisted in the fact that it might be displaced, and the casualty occurred in the most fortuitous way. Laundry work for the restaurant was done twice a week, the washing machine being operated by a gasoline engine. Water for this work was drawn from the cistern by means of a bucket and rope. The covering would usually be laid back against the coal house when water was being procured. At other times it was kept over the opening. On this occasion laundry work was in progress. The tenant had just drawn some water from the cistern, and had gone back to the washing machine. The covering was not replaced carefully, and was lying so that one corner was over the opening into the cistern. The deceased stepped on this corner of the covering, which allowed her to fall into the cistern, and the covering then righted itself and fell into place over the opening. For almost two years the tenant had used the cistern in safety in exactly the same condition, and if the covering had been used according to its purpose and design the accident would not have occurred.

Under the foregoing circumstances it smacks somewhat of hyperbole to call the cistern a nuisance, the characteristic of which is that it must or will injure that portion of the public who may be compelled to come in contact with it. (Black's Law Dictionary, title, Nuisance.)

Broadly speaking, "nuisance, nocumentum, or annoyance, signifies anything that worketh hurt, inconvenience or damage." (3 Blackstone's Commentaries, ch. 13, p. 216.) But in legal phraseology the term is applied to that class of wrongs that arises "from the unreasonable, unwarrantable or unlawful use by a person of his own property . . . producing such material annoyance, inconvenience, discomfort or hurt, that the law will presume a consequent damage." (1 Wood on Nuisances, 3d ed., § 1.)

Unless prejudice or damage threaten or result as a necessary consequence of the act done there is no nuisance.

"It is a nuisance . . . to do any act therein that in its consequences must necessarily tend to the prejudice of one's neighbors." (Blackstone's Commentaries, ch. 13, p. 218.)

"In order to create a nuisance from the use of property a material, substantial and appreciable injury must be occasioned to the person or property of another." (Joyce, Law of Nuisances, § 22.)

"Injury and damage must concur as results of an act or thing in order to make it a nuisance." (1 Wood on Nuisances, 3d ed., § 5.)

A nuisance may result from negligence. But negligence is not involved in a nuisance action, either as essential to the cause of action or as a ground of defense. (29 Cyc. 1155.)

In this case...