Butler v. Maney

• Decision Date: 04 February 1941
• Citation: 146 Fla. 33,200 So. 226
• Parties: BUTLER v. MANEY.
• Court: Florida Supreme Court

200 So. 226

146 Fla. 33

BUTLER v. MANEY.

Florida Supreme Court

February 4, 1941

Error to Circuit Court, Orange County; Frank A. Smith, Judge.

Action by Louise A. Butler, widow, against Thomas Maney, for injuries sustained by the plaintiff who was a tenant of defendant, when back porch or balcony of apartment occupied by plaintiff gave way and plaintiff fell through the floor. To review an adverse judgment, plaintiff brings error.

Affirmed.

COUNSEL

Dickinson & Dickinson, of Orlando, for plaintiff in error.

Maguire Voorhis & Wells, of Orlando, for defendant in error.

OPINION

CHAPMAN Justice.

The record in this case discloses that the plaintiff below was the tenant of the defendant and occupied an apartment of the defendant located at 214 South Rosalind Avenue in the City of Orlando, Florida. The apartment contained a back porch or balcony and when the plaintiff was walking on the floor thereof, the same gave way or broke and plaintiff fell through the said floor and sustained numerous bruises and injuries to her right knee, hip and body. The injuries of the plaintiff, it is contended, were due to the negligence of the defendant in failing to keep the floor of the porch or balcony to the rear of the apartment occupied by the plaintiff in a safe condition or in a good state of repair. The lower court sustained a demurrer to three counts of the amended declaration, and counsel for plaintiff below declining to amend further the said amended declaration, a judgment final for the defendant below was entered and an appeal therefrom has been perfected to this Court.

The first count of the amended declaration alleges the relation of landlord and tenant and the payment by the tenant to the landlord of the agreed monthly rentals and that it was the legal duty of the landlord to maintain and keep the premises inclusive of the floor of the rear porch, in a safe condition, but failed so to do and the plaintiff was injured while on the floor of the rear porch.

The second count of the amended declaration alleges the relation of landlord and tenant between the parties, the occupancy of the apartment by the plaintiff and the payment to the defendant of the agreed rentals for the use of the property and that under these conditions it was the legal duty of the defendant to keep the floor of the porch located on the rear of the apartment in a safe condition, but that defendant negligently permitted the floor of the porch to become rotten and decayed and while in the occupancy and use of the porch the floor broke and gave way and the plaintiff sustained certain enumerated injuries.

The difference between the first and second counts of the amended declaration is that the owner was charged in the first count with the legal duty of keepingall of the apartment in a safe condition, and in the second cound with keeping the entrance to the rear of the apartment, or the porch floor, in safe condition, and the breach of duty and the injury flowing therefrom.

The third count alleged the relation of the parties and an implied lawful duty on the defendant to keep the premises in safe condition and his breach of the implied legal duty, and the injury to the plaintiff, and the repair of the porch floor by the defendant after the plaintiff sustained the said injury.

The different grounds of the demurrer were directed to each count of the amended declaration and were, viz.: (a) the count failed to show a legal duty on the defendant to keep the premises in a safe and tenantable condition; (b) there was no violation alleged of a contractual obligation to keep the premises in repair; (c) there was no liability, as a matter of law, on the defendant for the injuries of the plaintiff; (d) and, broadly speaking, that there was no cause of action alleged.

The court below concluded that the amended declaration failed to state a cause of action. It was contended, when the case was orally argued at the bar of this Court and in the brief of counsel for plaintiff in error, that Section 3361, C.G.L., required the defendant to keep the apartment in safe condition so as not to injure those lawfully thereon. We have carefully examined this provision of our statute in the light of the contention of counsel, but we are unable to agree to this conclusion. The lower court held, and we think correctly, that this provision refers to plumbing, lighting, heating and ventilation and does not require a repair of the floor of a porch to an apartment. We have examined Christopher Co. v. Russell, 63 Fla. 191, 58 So. 45, Ann.Cas.1913C, 564.

The mere ownership of real property does not as a matter of law impose upon the landlord liability for the negligent use thereof by the tenant. The contract or agreement establishing the relation of landlord and tenant does not include the relation of principal and agent or master and servant. The obligations and duties of landlord and tenant rests upon established principles of law and the terms or conditions of the contract or agreement creating the relation of landlord and tenant. See Shearman & Redfield on the Law of Negligence, 6th Ed., vol. 1, pages 351-353, par. 144. The different counts of the declaration fail to allege or contain an allegation as to a covenant to repair the floor of the porch of the defendant where plaintiff's injury occurred, or an allegation in either of said counts that the defendant knew or had knowledge that the floor was defective or by the exercise of due care should have known that the floor had decayed and was defective or dangerous for the plaintiff to use.

Counsel for plaintiff in error cite and rely upon the cases, viz.: Viola v. Convery, 10 La.App. 85, 122 So. 90; Farguet v. De Senti, 110 Conn. 367, 148 A. 139; Bolitho v. Mintz, 106 N.J.L. 449, 148 A. 737; Maslin v. Childs, 146 A.D. 174, 130 N.Y.S. 902; Gaucso v. Levy, 89 Conn. 169, 93 A. 136; Cook v. Simon, 98 Conn. 98, 118 A. 634; Hinthorn v. Benfer, 90 Kan. 731, 136 P. 247, L.R.A.1915B, 98; Miller v. Geeser, 193 Mo.App. 1, 180 S.W. 3; Karp v. Barton, 164 Mo.App. 389, 144 S.W. 1111; Smith v. Morrow, 220 Ill.App. 627; Hunter v. Schuchart, Mo.App., 267 S.W. 411; Stevens v. Yale, 101 Conn. 683, 127 A. 283; Davies v. Kelley, 112 Ohio St. 122, 146 N.E. 888; Sullivan v. Northridge, 246 Mass. 382, 141 N.E. 114.

The general conclusion reached in the cited cases is that when a landlord rents different parts of a building to various tenants and retains control of the stairways, passageways halls and other methods of approach to the several portions of the buildings, for the common use of the tenants, there rests on the landlord an implied duty to use reasonable care in keeping such places in a reasonably safe condition, and that he is liable for injuries resulting to persons who are lawfully in such building for a failure to perform such duty. This liability on the part of the landlord arises only from his failure to keep that part of the building in a safe condition under his control and common to all the tenants. Some of the cited cases hold that the...