Dubois Recreation Co. v. Boyle

• Decision Date: 25 January 1929
• Docket Number: 170-1928
• Parties: DuBois Recreation Company v. Boyle, Appellant
• Court: Pennsylvania Superior Court

95 Pa.Super. 219

DuBois Recreation Company v. Boyle, Appellant

No. 170-1928

Superior Court of Pennsylvania

January 25, 1929

Argued October 23, 1928

Appeal by defendant from judgment of C. P., Clearfield County-1926 No. 390, in the case of DuBois Recreation Company, now to the use of John C. Arnold and N. F. Womer v. Mary C. Boyle.

Trespass by a tenant to recover damages resulting from a landlord's failure to make repairs. Before Chase, P. J.

The facts are stated in the opinion of the Superior Court.

Verdict for plaintiff in the sum of $ 400 and judgment thereon. Defendant appealed.

Errors assigned, among others, were to the charge of the court refusal of points and refusal of defendant's motion for judgment non obstante veredicto.

Ross H Pentz, and with him W. C. Pentz and John J. Pentz, for appellant, cited: Moore v. Weber, 71 Pa. 429; Levine v. McClenathan, 246 Pa. 374; Redman v Weeter, 86 Pa.Super. 173; Pa. Co. for Insuring Lives v. Bodek, 77 Pa.Super. 473; Levin v. Philadelphia, 277 Pa. 560.

N. F. Womer, and with him John C. Arnold, for appellee.

Before Henderson, Trexler, Keller, Linn, Gawthrop and Cunningham, JJ.

OPINION

Keller, J.

In this case the learned court below submitted the disputed questions of fact to the jury, and instructed them as to the applicable law in accordance with the decision of this court in Minor v. Hogg, 67 Pa.Super. 419, 420. In this we find no error.

The defendant's property was three stories high in front. The plaintiff leased only the first floor, as a bowling alley. At the rear the property was only one story high, so that this part of plaintiff's leasehold was next to the roof; but the defendant had constructed on the roof of this portion of the building a walk for use by the tenants of the second and third floors of the front portion of the building to secure supplies from the rear. The verdict of the jury is conclusive that the roof of the one-story part of defendant's building did not pass to plaintiff as part of the leased premises but remained under the dominion and control of the defendant. The clause in the lease, that " all inside changes and repairs are to be made by the lessees and at their own expense in the future," is consistent with this finding. The duty of keeping the roof of the entire premises in repair thus rested on the defendant; none of it appertained to the plaintiff in connection with its lease; and defendant recognized her duty in this respect by numerous promises to repair the roof, so as to...