Fisher v. Thirkell

• Citation: 21 Mich. 1
• Court: Supreme Court of Michigan
• Decision Date: 07 July 1870
• Parties: Aaron Fisher et al. v. Isabelle F. Thirkell

21 Mich. 1

Aaron Fisher et al. v. Isabelle F. Thirkell

Supreme Court of Michigan

July 7, 1870

Heard April 20, 1870 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Wayne circuit.

This was an action on the case brought in the circuit court for the county of Wayne by Isabelle F. Thirkell against Aaron Fisher, Elam Fisher, John H. Griffith and William F. Kier, for an injury to the plaintiff occasioned by an opening in the sidewalk in front of premises in the city of Detroit alleged to be owned by the defendants Aaron and Elam Fisher, and to be in the occupancy of the defendants Griffith and Kier. The questions to be reviewed arise upon the charge of the circuit judge as to the liability of the several defendants. At the request of the plaintiff the court charged the jury:

1. If the jury believe, from the evidence, that the defendant Griffith was in the use and occupancy of the premises in question, in whole or in part, at the time of, and some days before the injury occurred, taking an inventory or otherwise using the same for his own benefit, and that the wood was put into the vault for the use of the premises by his direction or authority, in whole or in part, in such use of his said premises said Griffith is liable in this case.

2. If the jury believe, from the evidence, that the Fishers constructed the building, scuttle and improvements, and that from their construction several years ago down to the time when the injury occurred, they continued to be and were the owners of such scuttle and improvements, they are liable in this action, although they may have been only lessees of the ground on which such scuttle and improvements were situated, and may have subleased the same to other parties; that they were bound to keep the scuttle in good and safe condition while they thus owned the building and improvements, and it makes no difference that they may not have known that such scuttle was not in good and safe condition at the time.

To this charge the defendants excepted.

The defendants requested the court to charge:

1. That the mere parol bargain between Mrs. Hill and Griffith for the sale of the stock of goods, and the transfer of the lease thereof, did not make a valid binding contract until there was either a part payment for said goods and lease, or a written contract of sale between the parties thereto, or a delivery of said goods or a portion thereof.

2. That there is no evidence tending to prove that, previous to the time when the injury happened, there had been either such part payment or written contract or such delivery.

3. That even if, under the instructions of the court, the jury should find that Griffith had actually gone into possession, yet he would not be liable in this action for negligence unless he knew of a defect in the scuttle, or had been in possession such a period of time that his want of knowledge would be negligence.

4. That it was not the duty of the Messrs. Fisher, as owners of the building in question, to keep the same in repair while it was occupied by tenants, unless there was an agreement made with the tenants that they (the Fishers) should make the repairs.

5. In the absence of any such agreement the defendants Fisher are not liable in this action for injuries to the plaintiff caused by want of repair of the scuttle, which was broken or put out of order during the possession of tenants.

6. That there is no evidence tending to show that the scuttle was out of repair when the premises were leased by defendants Fisher, or that the defendants Fisher have since been in the actual occupation of said premises, and for this reason the defendants Fisher cannot be held liable in this action.

7. That the Fishers had a perfect right in erecting their store to excavate under the sidewalk if they put the same in a perfectly secure and unobstructed condition, and if the accident to the plaintiff occurred by reason of the negligence of the Fishers' tenants in permitting the scuttle to get out of repair, and not by reason of any original defect in the manner of making the same, then the Fishers are not liable in this action.

The circuit judge charged as requested in the first request made by defendants' counsel, but refused to charge as requested in the remaining requests. To which the defendants excepted.

The jury rendered a verdict for the plaintiff against the said defendants Aaron Fisher, Elam Fisher and John H. Griffith, who bring the judgment entered thereon into this court, by writ of error.

Judgment reversed, with costs, and a new trial awarded.

C. I. Walker, for plaintiffs in error:

I. There is no evidence tending to show that Griffith was in possession at the time of the accident to plaintiff, and, therefore, the court erred in giving the charge to the jury in accordance with the first request made by plaintiff's counsel.

This charge was also erroneous, because it assumes that there was evidence tending to show the wood was put in by the direction of Griffith.

There is not the slightest evidence in the case tending to show that the defendant Griffith gave any direction or authority to have the wood put in the vault. On the contrary, the proof is entirely clear that neither Griffith nor Kier ordered the wood.

By the charge of the court first given, the jury were permitted to find, as a fact, that Griffith directed or authorized the removal of the scuttle and its careless replacing, and the effect of the charge could not have been otherwise than prejudicial to the defendant Griffith. If the evidence tended to show the facts to be as indicated by the first clause of the charge under consideration, still the mere use and occupancy of the premises by Griffith while "taking an inventory," etc., would not render him liable, unless he also authorized or directed the opening of the scuttle, so as to render it dangerous.

This charge tended also to mislead the jury by leading them to the conclusion that Griffith's presence in the store with the Hills, for the purpose of assisting in taking the inventory, was such use and occupation as would render him liable for a continuance of the nuisance.

II. The court erred in refusing to charge as requested by defendants' counsel in his third request, viz.: that to make the defendant, Griffith, liable, he must have had knowledge of the defect, or have been in possession such a period of time that his want of knowledge would be negligence.

At common law, a party injured by a nuisance could not maintain his action against the alienee of the land for the continuance of a nuisance, but the injured party must sue out his writ, "quod permittat prosternere," to abate the nuisance complained of. This was changed by statute of 13 Edward I., c. 24; 3 Black. Com., p. 221. After the passage of said statute, the action could be brought against both the party creating the nuisance, and the party who, upon the alienation of the premises, continued the nuisance: Ibid.

But we submit that there could be no continuance of the nuisance by the alienee, until he knew of the nuisance, or would have known of it by the use of ordinary care. It would be carrying the doctrine of constructive negligence to an unreasonable length, to hold that an alienee of premises or tenant for years, upon receiving a conveyance or a lease thereof, becomes eo instanti liable for injuries sustained immediately after such change of title or possession, which injuries were caused by the existence of a nuisance then on the premises.

There is no necessity for any such stringent rule, since the liability of the party who created the nuisance and transferred the premises with it therein is indisputable: Waggoner v. Jermaine, 3 Denio 306. The following authorities expressly hold that a tenant for years, or an alienee of land, is not liable for the continuance of a nuisance existing at the time of the transfer to him, until he has been requested to remove it: Penruddock's Case, 5 Coke 100; McDonough v. Gilman, 3 Allen 264; Nichols v. Boston, 98 Mass. 39; Dodge v. Stacy, 39 Vt. 559; Pittsburg v. Moore, 44 Me. 154; Johnson v. Lewis, 13 Conn. 303; Pierson v. Glean, 2 N. J., 37; Woodman v. Tufts, 9 N. H., 88.

In the case of Caldwell v. Gale, 11 Mich. 77, this court hesitated about applying the above rule as to notice, but did not decide the question, inasmuch as it was there held, that if notice was requisite, a sufficient one had been given.

III. The charge of the court, and the refusals to charge, as to the liability of the Fishers, are, in effect, that as builders of the store and owners of the paving and area in front thereof, the Fishers were bound at their peril to keep the scuttle in good order, and their liability is not affected by the fact that they leased the store with the scuttle in a perfectly secure condition, nor by the fact that the injury to the plaintiff was caused by the negligence of Fishers' tenants, and without the Fishers' knowledge, while the premises were in the possession of such tenants.

This charge, and refusals to charge, were, we insist, erroneous.

1. Landlords who have leased their premises in good condition, and who have not covenanted to repair, are not liable for damages caused by a nuisance created on the premises during the existence of the tenancy.

The decisions on this point are numerous, and the following are the principal cases in which the question has arisen Payne v. Rogers, 2 H. Black, 350; Leslie v. Pounds, 4 Taunt. 649; Cheetham v. Hampson, 4 T. R., 318; Bishop v. Bedford Charity, 1 Ellis & Ellis, 697; Chauntler v. Robinson, 4 Ex. 163; ...