Bruder v. Philadelphia

Decision Date05 January 1931
Docket Number332,333
Citation153 A. 725,302 Pa. 378
PartiesBruder v. Philadelphia et al., Appellants
CourtPennsylvania Supreme Court

Argued December 5, 1930

Appeals, No. 332 and 333, Jan. T., 1930, by defendants Samuel Finberg and Elizabeth Brick, and Philadelphia, from judgments of C.P. No. 1, Phila. Co., Sept. T., 1925, No. 750 for plaintiff, in case of Joseph A. Bruder v. Philadelphia, and American Stores Co., Samuel Finberg and Elizabeth Brick, additional defendants. Affirmed.

Trespass for personal injuries on sidewalk. Before KUN, J., without a jury.

From the record it appeared that suit in trespass was originally brought against the City of Philadelphia. Subsequently the city issued three separate writs of scire facias by which it brought in the owners, Samuel Finberg and Elizabeth Brick and the American Stores Company, tenants.

Verdicts were entered for plaintiff against the city for $2,510, a verdict for the city against the owners for $2,510, and a verdict in favor of the American Stores Company against the city. Other facts appear by the opinion of the Supreme Court. City of Philadelphia, Samuel Finberg and Elizabeth Brick appealed.

Error assigned by the city was, inter alia, refusal of motion for judgment against American Stores Co. n.o.v., quoting record.

The assignments of error in each appeal are overruled and the judgments are affirmed.

Error assigned by the owners was, inter alia, refusal of judgment for the owners n.o.v., quoting record.

C. Brewster Rhoads, with him Lawrence M. C. Smith and Montgomery & McCracken, for appellants, Samuel Finberg and Elizabeth A. Brick. -- The tenant, American Stores Company, is solely responsible to third parties for the condition of the pavement at the time and place of the accident.

Where the entire premises are leased to one tenant the tenant is prima facie liable for injuries occurring to third parties on the premises: Bears v. Ambler, 9 Pa. 193; Wolk v. Hotels Co., 284 Pa. 545; Phila. v. Merchant & Evans Co., 296 Pa. 126.

The basis of responsibility is a duty arising from the control and beneficial use of the premises: Harte v. Jones, 287 Pa. 37.

The rule that there is no liability on the part of the landlord when the premises are leased applies equally well to sidewalks as to other parts of the premises: Phila. v. Merchant & Evans, 296 Pa. 126; Hawkes v. Phila., 264 Pa. 346; Phila. v. Bergdoll, 24 Pa. Dist. R. 595.

The principle as to subdivided premises is the same as that when entire buildings are leased: Wolk v. Hotels Co., 284 Pa. 545; Dittus v. Johnson, 12 Pa. D. & C. 132; Roberts v. Lipschitz & Peters, 30 Pa. Dist. R. 484; Sloan v. Hirsch, 283 Pa. 230; Will v. Knoblauch, 92 Pa.Super. 537.

The true principle is that the outside of a building and the sidewalk belong to the leased premises if they are appurtenant thereto, a part thereof, or because they are in fact necessary to the beneficial enjoyment of the demised property for the purpose for which it was leased, or because it is manifest from the condition and situation of the property that it has been designed for the particular benefit of premises demised: Koplo & Koplo v. Ettenger, 84 Pa.Super. 358.

Israel K. Levy, Assistant City Solicitor, with him Augustus Trask Ashton, City Solicitor, G. Coe Farrier and Harry S. Platowsky, Assistant City Solicitors, for appellants, City of Philadelphia. -- In this case, the city takes the position that it is entitled to indemnity both from the owners and the tenant of the store portion of the building: Thorp v. Boudwin, 228 Pa. 165, 171; Wunder v. McLean, 134 Pa. 334, 339; Fow v. Roberts, 108 Pa. 489, 492.

Where a landlord divides his property into a store and several apartments, and leases them to different tenants, the tenant of the store is responsible for personal injuries caused by a defective sidewalk adjacent to the entrance of such store: Phila. v. Reading Co., 295 Pa. 183; Phila. v. Merchant & Evans Co., 296 Pa. 126; Slegel v. Lauer, 148 Pa. 236; Perkinpine v. Hogan, 47 Pa.Super. 22; Snyder v. Camp, 53 Pa.Super. 309; Cain v. Aspinwall-Delafield Co., 289 Pa. 535; Cohn v. May, 210 Pa. 615; Borman v. Improvement Co., 264 Pa. 156; Morse v. Chessman, 86 Pa.Super. 256.

The terms of the lease between landlord and tenant enure to the benefit of third persons in negligence cases: Cunningham v. Rogers, 225 Pa. 132; Hanley v. Ryan, 87 Pa.Super. 6; Rosser v. Cusani, 97 Pa.Super. 255; Levine v. McClenathan, 246 Pa. 374; Cohen v. Bank, 262 Pa. 76.

An owner in possession of the entire property is primarily responsible for a defective sidewalk in front thereof: Phila. v. Reading Co., 295 Pa. 183; Phila. v. Merchant & Evans Co., 296 Pa. 126.

Within the building itself, the owner is responsible for every part of the building used in common by the tenants: Wolk v. Hotels Co., 284 Pa. 545; Lerner v. Bergdoll, 285 Pa. 193; Baker v. Ellis, 248 Pa. 64; Lewin v. Pauli, 19 Pa.Super. 447; Prager v. Gordon, 78 Pa.Super. 76; Will v. Knoblauch, 92 Pa.Super. 537; DuBois Recreation Co. v. Boyle, 95 Pa.Super. 219; Frater v. Kresge, 95 Pa.Super. 574.

Outside of the building and inside of the street line, the owner is also responsible for the defective condition of the premises: Fortunato v. Limestone Co., 278 Pa. 499.

Within the lines of the sidewalk abutting upon his divided premises, the owner is equally responsible for its defective condition: Brown v. Weaver, 17 W.N.C. 230; Richey v. Armour, 293 Pa. 127; Koplo v. Ettenger, 84 Pa.Super. 358; Butler City v. Tel. Co., 93 Pa.Super. 533.

Louis Wagner, with him Thomas Clary and R. A. Smith, for appellee, Joseph H. Bruder. -- An owner who leases portions of a building to different tenants is responsible for the safe condition of the abutting sidewalks: Frazier v. McLiesch, 99 Pa.Super. 168; Brown v. Weaver, 17 W.N.C. 230; Coles v. Schweppenheiser, 83 Pa.Super. 490; Harte v. Jones, 287 Pa. 37; Phila. v. Merchant & Evans, 296 Pa. 126; Hawkes v. Phila., 264 Pa. 346; Koplo & Koplo v. Ettenger, 84 Pa.Super. 358; Butler City v. Tel. Co., 93 Pa.Super. 533.

The duty of an owner to keep abutting sidewalks safe may not be delegated, and an agreement between him and his tenant will not relieve the owner of his liability but may give him a right to indemnity: Hanley v. Ryan, 87 Pa.Super. 6; Kane v. Lauer, 52 Pa.Super. 467.

Before FRAZER, C.J., WALLING, SIMPSON, KEPHART, SADLER, SCHAFFER and MAXEY, JJ.

OPINION

MR. JUSTICE SCHAFFER:

Joseph A. Bruder brought suit against the City of Philadelphia to recover damages for personal injuries which he sustained by a fall on a defective payment along property at the northwest corner of 57th and Farson Streets. The property was owned by Samuel Finberg and Elizabeth A. Brick. They rented different portions of it to several persons. The building was 17 feet 6 inches wide on Market Street and extended in depth along Farson Street 77 feet. The accident took place on the Market Street front.

The American Stores Company leased the storeroom on the first floor, occupying the whole Market Street front and extending 31 feet along Farson Street to an entrance way. It also leased the basement. That part of the first floor beyond the entrance way was leased to another tenant, who also occupied apartments in the second floor; and, in addition, the second and third floors were rented to others. The store and basement were completely separated from the back part of the building by the entrance way and were without any communication to it. The entrance to the store was by a doorway across where the Market and Farson Streets walls joined.

After the suit was brought against the city, it issued sci. fas. and brought in the two owners and the American Stores Company as defendants. A verdict and judgment were entered in favor of the plaintiff against the city for $2,510 and the question as to who was liable over to it, whether the owners or the American Stores Company, was submitted to the trial judge for his determination without a jury. He decided that the owners were liable and from the judgment which he entered against them they have appealed. The city also has appealed from the judgment entered against it in favor of the American Stores Company. The position of the city is that it is entitled to judgments against both the owners and the tenant, but can have but one satisfaction; of the owners that the tenant alone is responsible; and of the tenant that only the owners are liable.

We therefore, have this question presented: Where the owners of property lease it to several tenants and a third person is injured by the negligent maintenance of the pavement in front of the property and there has been a recovery against the municipality in which the property is located, can it recover over from the owners and the tenant, or is it...

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