Causey v. Norwood

• Decision Date: 24 September 1934
• Docket Number: 31091
• Citation: 156 So. 592,170 Miss. 874
• Court: Mississippi Supreme Court
• Parties: CAUSEY v. NORWOOD

156 So. 592

170 Miss. 874

CAUSEY v. NORWOOD

No. 31091

Supreme Court of Mississippi

September 24, 1934

Division B

1. LANDLORD AND TENANT.

Lessor of building does not warrant building to be in good condition for lessee's purposes, and is not under duty to make repairs so as to keep building in suitable condition for lessee, unless such obligation is specially undertaken by contract.

2. LANDLORD AND TENANT.

Lessor of store building held not liable for damage to lessee's merchandise from overflow of water from part of upper floor retained by lessor occasioned by giving way of faucet and freezing of pipe, in absence of contract or warranty protecting lessee against such loss.

HON. E J. SIMMONS, Judge.

APPEAL from circuit court of Pike county HON. E. J. SIMMONS, Judge.

Suit by Joseph E. Norwood against E. A. Causey. From a judgment of the circuit court, affirming a judgment of the county court in favor of plaintiff, defendant appeals. Affirmed.

Affirmed.

Thomas Mitchell, of Magnolia, for appellant.

The doctrine which obtains in this case and in this class of cases is correctly stated in 3 Farnham on Water and Water Rights, at section 966, as follows: "If the injury is caused by leakage from pipes in other portions of the building than that occupied by the injured tenant, the question of the landlord's liability will depend upon the connection with the injury. He is liable for all injuries resulting from his own negligence and an exemption clause in the lease will not include such injury. So a landlord is not relieved from liability for injury to tenants of a lower floor by the freezing and bursting of an automatic fire-extinguisher in the portion of the building retained by him, by the fact that he has employed an independent contractor to keep the building heated. The lessor is also liable for injuries caused by the negligent acts of his tenants."

A lessor in control of an upper floor of the premises is liable to an occupant of a lower floor for any damage proximately due to defective plumbing upon the upper floor.

Lebensberger v. Scofield, C. C. A., 155 F. 85; Marshall v. Cohen, 44 Ga. 489; Priest v. Nichols, 116 Mass. 401; Sherdina v. Forsee, 106 Me. 499; Jones v Freidenburg, 66 Ga. 505; Ingerssen v. Rankin, 47 New Jersey, 18.

It is a familiar doctrine of law that "the landlord, when in control of an upper story of a building, is liable to a tenant of a lower floor for injuries occasioned by water escaping from fixtures which negligently have been allowed to become out of repair.

Hargraves v. Harton, 53 A. 807; Pittsburg Shoe Co. v. Pittsburg Cotton Co., 71 N.H. 522, 53 A. 807.

A landlord having control of the roof is generally liable to the tenant below for damages from defective condition of the same, or negligently leaving the conduct pipe so as to flood the premises below, or exposing goods of tenant by uncovering roof.

McVie v. McNaughton, 23 N. Y. Weekly Digest, 89; Worthington v. Barker, 11 Del. 545; Rauth v. Deavenport, 45 N.Y.S. R. 926, 60 Hun. (N. Y.) 70; Sulznacher v. Dickie, 6 Del. 469; Center. v. Davis, 39 Ga. 210; Toole v. Becket, 67 Me. 55, 24 Am. Rep. 54; Clickauf v. Maurer, 75 Ill. 288, 20 Am. Rep. 238; Bissell v. Lloyd, 100 Ill. 214; Guthman v. Castleberry, 49 Ga. 272.

A landlord occupying the upper floor is liable to tenant below for injury to tenant below from leakage from his room.

Jackson v. Eddy, 12 Mo. 209; Priest v. Nichols, 116 Mass. 401; Bernauer v. Hartman, 33 Ill. 491; Pike v. Brighten, 71 Cal. 159, 60 Am. Rep. 577; Freidberger v. Jones, 63 Ga. 612.

A landlord allowing sewerage to flow from his adjoining lot into the cellar of his tenant is liable to the tenant for damages.

Smith v. Flaxon, 156 Mass. 589.

And if the water pipes are controlled by the landlord, are out of order, and the tenant is injured thereby, the landlord is liable.

Vann v. Rouse, 94 N.Y. 401.

A landlord is bound to keep in condition pipes used in common by several tenants.

Fitch v. Armour, 27 Jones & S. 413; Ingersen v. Rankin, 54 Am. Rep. 100; Kecoughton Lodge v. Steiner, 106 Va. 589; Krey v. Schlusaner, 16 N.Y.S. 695; Elliott v. Allen, 87 Am. Dec. 653; Philips v. Library Co. of Burlington, 55 N. J. L. 307; Curtis v. Kiley, 159, Mass. 123; Nilford v. Holbrook, 85 Am. Dec. 735; Readman v. Conway, 126 Mass. 374; Leydecker v. Brintnall, 158 Mass. 292; Schilling v. Abernathy, 112 Pa. 437.

Price & Price, of Magnolia, and Price, Cassidy & McLain, of McComb, for appellee.

Plaintiff could, by no stretch of imagination, be charged with negligence if the water faucet had been left open and allowed to run into the lavatory and on the floor, for the reason that he had had no notice of the defective condition of the plumbing fixtures, if any, and no notice that faucet was left open.

Jones v. Millsaps, 71 Miss. 10, 14 So. 440; 114 So. 830; 118 So. 801; 139 So. 624; Plaza Amusement Co. v. Rothburg, 131 So. 350; Rich v. Swalm, 137 So. 325; 16 R. C. L. 1034-36 and 1042-44.

OPINION

Ethridge, P. J.

Norwood, plaintiff in the court below, brought suit in the county court against the appellant, Causey, for one hundred ninety-six dollars and fifteen cents for the rent of a building leased by Norwood to Causey, the contract of lease reading as follows:

"This contract and agreement made and entered into on this the 17th day of December, A. D., 1929, by and between Joseph E Norwood of Magnolia, Miss., party of the first part, and E. A. Causey of Magnolia, Miss., party of the second part, witnesseth:

"That the party of the first part is the owner of the two story brick store building on the hereinafter described property, and the party of the second part is desirous of leasing the entire first floor of said store building and the rear half of the second story as now partitioned;

"Now therefore, in consideration of the premises and of the payment by the party of the second part to the party of the first part, of the sum of ninety ($ 90) dollars per month payable on the first day of each month hereafter beginning on January 1, 1930, and extending for a period of three years, I hereby lease and let to E. A. Causey the first floor and the rear half of the second floor, as now partitioned, of the two-story brick building situated on the following described property in the town of Magnolia, Pike county, Mississippi, to-wit; Fractional part of the S 1/2 of Lot 5, fronting twenty-five feet on Railroad avenue, and fractional part of N 1/2 of Lot 6, fronting twenty-three and one-half feet on Railroad avenue in Square 14, situated in Magnolia, Miss.

"It is understood and agreed between the parties hereto that this lease contract is for a period of three (3) years, and that the party of the second part obligates himself to pay for the lease of said property the sum of ninety ($ 90) dollars per month as rental, said payments to be made monthly and on the 31st day of each and every month during the continuance of this contract.

"It is understood and agreed further between the parties that the party of the second part shall not...