Cole v. McKey

• Decision Date: 21 September 1886
• Citation: 29 N.W. 279,66 Wis. 500
• Parties: COLE v. MCKEY.
• Court: Wisconsin Supreme Court

66 Wis. 500

29 N.W. 279

COLE

v.MCKEY.

Supreme Court of Wisconsin.

September 21, 1886.

Appeal from circuit court, Rock county.

July 15, 1884, in pursuance of an oral agreement made about May 1, 1884. the defendant, in behalf of himself and others, constituting the McKey heirs, but in his own name, and in writing, and upon the conditions, conventions, covenants, provisos, and reservations therein contained, leased to the Beloit City Guards, by S., B., and A., the hall known as Armory Hall, in the third story, and three rooms in the second story fronting on State street, in the McKey block, situated on the corner of State and Broad streets, in the city of Beloit, for the term of two years from May 1, 1884, at the rate of $175 per annum, payable monthly in advance, “to be used for the usual purpose of a drill-room and dancing-hall.” The said guards, in and by said lease, in effect covenanted and agreed to “pay rent in the manner aforesaid, and deliver up the said premises, together with the appurtenances thereunto belonging,” peaceably and quietly, at the expiration of said term, in as good condition and repair as the same were then, or might be put into by the lessor,--inevitable accidents, reasonable use, and natural wear and decay excepted; and, further, that they would not do or suffer any waste in said premises; that they would use the same for the above purpose only; that they would not underlet the same, or any part thereof; that they would not assign said lease, or any interest therein; that they would observe special care and caution to preserve the premises from damage or injury by fire or otherwise. There were also a number of other rooms in the building occupied for stores and other purposes; and all were, on or prior to November 22, 1884, in the possession of tenants. The only means of access into said Armory Hall was through a double door, on the south side of said building, opening immediately into a stairway leading to the second floor, where there was a hall-way, and from thence by another stairway leading to the third floor, and thence into Armory Hall; and said stairways and halls leading to said Armory Hall were for the common use and convenience of said guards and other tenants occupying said building, and such other persons as had lawful right to enter said building.

It appears from the evidence that about November 1, 1884, the plaintiff went to Beloit to visit the family of her son-in-law, W. D. Wansor, living at that place. Soon after November 1, 1884, Wansor, without the knowledge or consent of the defendant, or any of the owners of the block, rented Armory Hall of the City Guards for the purposes of a skating-rink. He advertised it to be opened as such on the evening of November 14, 1884. It was opened as a skating-rink by Wansor. The plaintiff, with her daughter, Mrs. Wansor, attended such skating-rink twice before November 22, 1884, and on one occasion assisted her son-in-law in running the rink,--she took tickets at the door. Tickets were purchased of her and paid for at the door. One evening she acted as floor manager of the rink for her son-in-law, and once went and paid the rent for him. After that, and on the evening of November 22, 1884, the plaintiff and her daughter, Mrs. Wansor, started to go to the entertainment at the skating-rink, as she had before. It was dark, rainy, and the wind blew hard. There was no light at the foot of the stairs, and the hallway was dark. As she went in, the right-hand part of the door of the entrance was shut, and the left-hand part of the door open; and as she went through the part of the door that was open, and stepped to the right,--just at the right of the part of the door that was shut a little from the edge of the door,--she stepped into a hole in the floor, and went down into it with one limb up as far as she could fall,--near to the groin,--and wrenched and badly injured her limb. The hole was formed by the floor breaking through, and had been there for more than three weeks, and during that time was known to be there by members of the Guards. It was about six inches wide, and eight or ten inches long. At the time of the agreement to lease, the place where the hole was had become rather worn, but otherwise in good condition. Armory Hall had been used as a rink in the winter of 1881-82 and 1882-83. In August or September, 1884, the Presbyterian Society gave a kind of fair or entertainment in the hall. Prior to May 1, 1884, the Guards had talked with the defendant about improving and repairing the hall, which he refused to do, because they would not pay more rent than named in the lease. The undisputed evidence shows that neither the defendant, nor any of the owners of the block, lived in Beloit, or had any knowledge or information as to the existence of the hole in question until after the plaintiff's injury, November 22, 1884. The rents were collected through the bank. At the close of the testimony, of which the above statement is the substance, the defendant moved for a nonsuit, which was granted; and from the judgment entered thereon the plaintiff brings this appeal.Buckley & Wickhem and C. M. & F. M. Scanlan, for appellant, Mary A. Cole.

Winans & Hyzer, for respondent, William D. McKey.

CASSODAY, J.

The case at bar is clearly distinguishable from that class of cases cited where the injury is to a traveler upon a public highway or walk, and the defect complained of is either in, or in close proximity to, such highway or walk; as in Inhabitants of Milford v. Holbrook, 9 Allen, 17;Readman v. Conway, 126 Mass. 374;Brown v. Weaver, 5 Atl. Rep. 32. The rule seems to be well settled that, in the absence of any secret defect or deceit or warranty or agreement on the part of the landlord to repair, the tenant takes the leased premises in the condition they happen to be in at the time of the leasing, and that in such case the landlord is not liable to the tenant for an injury caused by the premises being out of repair during that term. Hart v. Windsor, 12 Mees. & W. 68; Keates v. Earl of Cadogan, 70 E. C. L. 591; Doupe v. Genin, 45 N. Y. 119;McAlpin v. Powell, 70 N. Y. 126;Edwards v. New York & H. R. R. Co., 98 N. Y. 245;Dutton v. Gerrish, 9 Cush. 89;Woods v. Naumkeag S. C. Co., 134 Mass. 357; S. C. 45 Amer. Rep. 344; Bowe v. Hunking, 135 Mass. 380; S. C. 46 Amer. Rep. 471; Brewster v. De Fremery, 33 Cal. 341;Krueger v. Ferrant, 29 Minn. 385;S. C. 13 N. W. Rep. 158;Humphrey v. Wait, 22 U. C. C. P. 580; Wood, Landl. & Ten. § 382. So it seems that the rightful subtenant, servant, employe, or even customer of the lessee is under the same restriction, because he enters under the same title, and not by any invitation, express or implied, from the owner, and hence assumes the same risk. Taylor, Landl. & Ten. § 175; Jaffe v. Harteau, 56 N. Y. 398;Ryan v. Wilson, 87 N. Y. 471.

In the case before us there is no claim of any secret defect, deceit, warranty, or agreement on the part of the defendant to repair. On the contrary, it was expressly agreed upon the part of the tenant to “deliver up the said premises, together with the appurtenances thereunto belonging, * * * peaceably and quietly, at the expiration of said term, [of two years' time,] in as good condition and repair as the same” were at the time of making the lease. Undoubtedly, the lease gave to the lessees, and those rightfully using any part of the leased premises under them, the right of passage through and up the hallways and stairways mentioned, as there was no other means of access. Pomfret v. Ricroft, 1 Saund. 321; Doyle v. Lord, 64 N. Y. 432;Royce v. Guggenheim, 106 Mass. 201.

But it is claimed that notwithstanding such right of passage, yet that, as the defendant had other tenants in the same building, having a like right of passage, such hallways and stairways must be deemed to have remained in the possession and control of the defendant, and hence that he was responsible for injury by reason of any want of repair therein.

It has been held that where the landlord only rented a portion of the premises, and retained the possession, occupancy, and control of the balance, he was liable to one injured, while rightfully passing over the portion in his possession, by reason of a defect therein. Camp v. Wood, 76 N. Y. 92;Edwards v. New York & H. R. R. Co., 98 N. Y. 255. This rule has been extended to a passage-way over staircases and entries used by the lessee “in common with the landlord...