Charlow v. Blankenship.
| Citation | 80 W.Va. 200 |
| Court | West Virginia Supreme Court |
| Decision Date | 17 April 1917 |
| Parties | Charlow v. Blankenship. |
1. Landlord and Tenant Condition of Premises Implied Covenant.
There is no implied covenant upon the part of the landlord in a lease that the premises are tenantable or reasonably suitable for occupation. In the absence of fraud or concealment by the lessor of the condition of the property at the date of the lease, the rule of caveat emptor applies. (p. 202).
2. Same Condition of Premises Bepairs.
There is no obligation upon a landlord to make repairs to leased premises during the continuance of the lease, in the absence of an express agreement to do so. (p. 202).
3. Same Negligent Bepairs Injury to Tenant Liability.
Where a lessee of a storeroom is injured by the failure of the landlord to exercise due care in making repairs to that part of the building, the possession of which he retains, or by the negligent use by the lessor of such part of said building, such lessee may maintain a suit to recover damages for the injury resulting to him from such negligence, or want of due care. (p. 202).
Error to Circuit Court, Raleigh County.
Action by Samuel Charlow against P. L. Blankenship. Judgment for defendant on a directed verdict, dismissing the suit, and plaintiff: brings.error.
Reversed, verdict set aside, remanded,.
Alfred I). Preston, for plaintiff in error.
Hutchinson & Hawley and File & File, for defendant in error.
The defendant is the owner of a two-story brick building in the city of Beckley. The plaintiff in the fall of 1912 rented a storeroom in this building and this lease was extended from year to year, the storeroom being occupied by the plaintiff as a tailor shop at the time of the occurrences complained of in this suit. The second floor of the building was constructed for offices, one of which was occupied by the defendant. The plaintiff's lease covers nothing but the storeroom described therein and does not give him any right or control over the remainder of the building. In April, 1915, plaintiff claims that he sustained substantial injury to his goods by reason of water leaking through the ceiling into the storeroom. That the storeroom was to some extent flooded on this occasion resulting in injury to the plaintiff is shown by the evidence. Upon investigation it was found that an aperture through the fire wall of the building, for the conveyance of the water which collected on the roof into a spout running down the side of the building, had become stopped up. This roof was surrounded by a fire wall and this aperture was the only provision made for the escape of the water falling upon the roof, and the result of its becoming stopped up was that the water falling upon the roof remained there. A sufficient quantity collected to come up over the place where the edge of the composition roof joined a tin flashing fastened to the brick wall and ran through between the composition roof and this tin flashing and down into the building. It is shown by a tinner who repaired the roof on this occasion that the opening in the fire wall through which the ' water was conveyed to the down-spout was too small and that this caused it to become clogged up by a paper bag washed into it by the rain. The plaintiff testifies that prior to this time he was troubled by water leaking into his storeroom from above and that he notified the defendant in regard thereto, but it does not appear what, if anything, was done at that time to make repairs to the roof.
On another occasion, in the fall or summe" of 1915, the plaintiff's storeroom was again flooded and his goods injured. This time the opening in the fire wall had become stopped up from straw washing into it. This straw was placed on the roof for the purpose of pre-venting injury thereto from bricks being used to repair the fire wall, which repairs defendant was having made. The opening into the down-spout was stopped up on this occasion in such a way that the water came through the hole in the wall, but instead of going into the spout ran down the side of the building and behind the cornice and into plaintiff's storeroom. Plain tiff also claims that his storeroom was flooded upon another occasion causing injury to him. but just what caused the trouble on this occasion is not quite clear. The defendant declined to make any reparation for the injury received by the plaintiff and this suit was brought to recover damages therefor. Upon the trial of the case the plaintiff testified as to the extent of his injury and also introduced evidence showing that the flooding of his storeroom was caused substantially as above detailed. At the conclusion of the plaintiff's evidence the court sustained a motion by the defendant to direct a verdict in his favor, and from the judgment of the court refusing to set aside this verdict and dismissing plaintiff's suit, this writ of error is prosecuted.
The defendant insists that no recovery can be had for the reason that there is no express covenant in this lease of fitness of the storeroom for any purpose, and the law does not imply such a covenant, and further that there is no covenant upon the part of the lessor, either express or implied, to make repairs. It is quite true that in the absence of fraud or concealment on the part of the lessor there is no implied covenant in a lease that the leased premises are tenantable or fit for the purpose for which the tenant intends to use them. Underbill on Landlord and Tenant, §477; 24 Cyc. 1047-1048; Kline v. McLain, 33 W. Va. 32; Clifton v. Montague, 40 W. Va. 207; Windon v. Stewart, 43 W. Va. 711; Arbenz v. Exlcy, 52 W. Va. 476. Neither is there any obligation upon the landlord to make repairs to the leased premises during the continuance of the lease in the absence of an agreement to do so. Taylor on Landlord and Tenant, §327; Underhill on Landlord & Tenant. §96; Windon v. Stewart, 43 W. Va. 711; Kline v. McLain, 33 W. Va. 32: Arbenz v. Exley, 52 W. Va. 476.
But this doctrine has no application to the case presented here. There is no question of fitness of the leased premises nor is there any claim for damages asserted because of a failure to make repairs upon the leased premises. The contention of the plaintiff is that the defendant has been negligent in the use and care of that part of the building remaining in his control. The tenant of a part of a building has a right to rely upon the owner of the building exercising due and ordinary care in the use of that part of it remaining in his possession. The tenant has no access to any part of the building except what he has leased, and the landlord, as to those parts of the building of which he retains the...
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