Johnson v. Prange-Geussenhainer Co.

• Decision Date: 10 March 1942
• Citation: 2 N.W.2d 723,240 Wis. 363
• Parties: JOHNSON v. PRANGE-GEUSSENHAINER CO. et al.
• Court: Wisconsin Supreme Court

240 Wis. 363

2 N.W.2d 723

JOHNSON

v.PRANGE-GEUSSENHAINER CO. et al.

Supreme Court of Wisconsin.

March 10, 1942.

Appeal from a judgment of the Circuit Court for Sheboygan County; H. A. Detling, Judge.

Affirmed in part; reversed in part; remanded with directions.

Action commenced August 5, 1940, by Dorothy Johnson against Prange-Geussenhainer Company and H. C. Prange Real Estate Company to recover damages for personal injuries sustained by plaintiff in falling on an icy sidewalk adjacent to premises occupied by Prange-Geussenhainer Company under a lease from the H. C. Prange Real Estate Company, the owner.

The complaint alleged: That the Real Estate Co. was the owner of premises occupied by Prange-Geussenhainer Co., which conducted a retail hardware store thereon, as lessee. That on February 26, 1940, at about 6:24 P. M., plaintiff, while walking in a diligent and careful manner, slipped upon an accumulation of ice and snow formed upon the sidewalk adjacent to the store building, and sustained severe injuries by reason of her fall; that the accumulation of ice and snow was caused by the failure of Prange-Geussenhainer Company to keep the outside of the building in a proper state of repair, particularly with respect to a metal drain pipe, conducting water from the roof of the building to an underground storm sewer; that defendant Prange-Geussenhainer Company had allowed said pipe to become broken at a point about three feet above ground and to remain broken and unrepaired for a long period of time prior to the accident; and that by reason of such negligence water carried down the pipe from the roof spilled and froze causing the sidewalk to become unsafe for passers-by. That the Real Estate Company was likewise negligent in failing to repair such pipe after having notice and knowledge thereof. That plaintiff sustained injuries by reason of the combined negligence of the two defendants in failing to repair the conductor pipe, and in allowing water flowing from said pipe to accumulate and freeze on the walk and there remain.

The defendant Real Estate Company denied notice or knowledge of the defective condition of the drain pipe and denied negligence on its part in failing to repair such pipe and alleged that by the terms of the lease between said answering defendant and its co-defendant, Prange-Guessenhainer Company, the latter was under obligation to keep the sidewalks clear of ice and snow. The Real Estate Company demanded judgment dismissing the complaint upon its merits and prayed that in the event that plaintiff be found entitled to judgment then that the defendant Real Estate Company have judgment over against defendant Prange-Geussenhainer Company for any amount for which the former might be found liable.

The defendant Prange-Geussenhainer Company likewise denied negligence on its part in respect to the accumulation of ice and snow and in respect to the maintenance and repair of the drain pipe; denied that it was under any duty to repair and maintain the pipe. It alleged that the duty to repair the pipe rested on the defendant Real Estate Company under the provisions of the lease between the co-defendants whereby the lessor agreed to keep the outside of the leased premises in proper condition and repair; and that Prange-Geussenhainer Company had notified the Real Estate Company of the condition of the drain pipe in time for its repair before the date of the accident. Defendant Prange-Geussenhainer Company asked for relief accordingly.

The building owned and occupied by the defendants abutted on the south upon Wisconsin Avenue, a public street. Running north from this street and immediately to the west of the building is an alley used by business places abutting upon such way. The defective drain pipe ran down the west side of the building three feet north of the southwest corner of the building. Plaintiff fell on the sidewalk on the south side of the building slightly east of its southwest corner. The evidence was that the drain pipe had been in a state of disrepair for a period of at least several weeks prior to the accident and that when ice and snow on the roof of the building melted the water flowed from the drain pipe into the alley and out onto the sidewalk. The day on which the injury occurred had been mild and melting snow and ice had drained through the pipe and spread over the sidewalk where it froze.

The jury found that the walk had been rendered unsafe for the use of travelers exercising ordinary care; that this unsafe condition was the cause of plaintiff's injuries; and that the icy condition was caused by water flowing from the drain pipe on the defendants' building. It further found that Prange-Geussenhainer Company was negligent in failing to repair the pipe and that the Real Estate Company in the exercise of ordinary care ought to have discovered the defective condition of the pipe in time to have repaired it and was negligent in failing to repair it. The plaintiff was exonerated of any contributory negligence.

The trial court was of opinion that under the terms of the lease only the owner was ultimately liable for plaintiff's injuries and rendered judgment accordingly. Defendant Real Estate Company appealed from the judgment against it and releasing the Prange-Geussenhainer Company from liability. Plaintiff filed a motion for review of that portion of the judgment dismissing her complaint against Prange-Geussenhainer Company.

Currie & Leberman, of Sheboygan, and Lines, Spooner & Quarles, of Milwaukee (Charles B. Quarles, of Milwaukee, of counsel), for appellant.

Buchen, Federer & Grote and Clarence F. Whiffen, all of Sheboygan, for respondent Prange-Geussenhainer Co.

Bassuener, Humke & Poole, of Sheboygan, for respondent Dorothy Johnson.

FAIRCHILD, Justice.

There was raised an issue of fact as to the cause of the icy condition of the sidewalk and an issue of law as to the responsibility between the two defendants. Of course it is elementary that plaintiff's right to recover must rest upon some wrongful or negligent act by either or both of the defendants and that had the ice been merely a natural formation no legal liability would have accrued. Griswold v. Camp, 1912, 149 Wis. 399, at page 401, 135 N.W. 754;Adlington v. Viroqua, 1914, 155 Wis. 472, at pages 475-478, 144 N.W. 1130; Note (1914) 51 L.R.A.,N.S., 309.

Appellant H. C. Prange Real Estate Company contends that the evidence does not support the findings of the jury that the ice on the walk was caused by the defective drain pipe and argues that such finding is contrary to unquestionable physical facts. It relies upon evidence showing the elevation of the alley and sidewalk in the area of the downspout and the place of injury. This evidence was to the effect that the elevation of the alley and walk was such that water running from the drain pipe would normally flow to the center of the alley and thence onto the street and would not overflow the walk to the east of the center of the alley where the accident occurred. These measurements, however, were taken in October following the accident but no evidence was introduced as to the condition of the alley and walk at the time of the injury other than the evidence that the spout had been in a defective condition for a period of at least several weeks, that water draining therefrom flowed out over the sidewalk, and the testimony of eye witnesses that on the day of the accident water from the pipe had flowed onto the walk east of the center of the alley and that ice extended from the place where plaintiff fell to the drain pipe. This evidence is more than sufficient to support the verdict of the jury.

The issue as to liability between the lessor and lessee in this case presents new and serious questions. The rights and liabilities of the landlord and tenant rest in part upon their relation to each other and to the property under the terms of the lease. This is not the case where a part only of a building is in the lessee. The lessee here has possession of the entire building and no control was reserved to the lessor except the implied right of entry for the purpose of repair. The pertinent provisions of the lease read as follows:

“3. It is further agreed and understood that the Lessee will at its own cost and expense, during the said term keep and maintain the * * * internal parts of said premises in good substantial repair and condition, while the Lessor agrees that it will during said term at its own cost keep the outside, outerwalls and roof of said building in proper and substantial condition and repair.

“4. It is furthermore agreed and understood that the said Lessee is to have the right to the use of the private alley running from Wisconsin Avenue, north, and being to the rear of the premises herein leased, together with the owners and tenants of the other premises adjoining said alley.

“5. It is further understood that the Lessor shall not be liable for any injury, loss or damage to person or property on or on account of the said premises, or for any other claim in any event and under any circumstances whatsoever, whether it be for labor, outlays or otherwise.”

“9. It is agreed and understood further, that the Lessee shall at all times keep * * the said walks on the south and east of said premises clear from snow and ice, so as to be safe for public travel thereon.”

Ordinarily by leasing his property a landowner absolves himself of his duty to maintain the premises so as not to create an unreasonable risk to strangers to the premises. The duty then devolves upon the tenant by reason of his occupancy and control of the premises. See: Fellows v. Gilhuber, 1892, 82 Wis. 639, 642, 52 N.W. 307,17 L.R.A. 577;Kinney v. Luebkeman, 1934, 214 Wis. 1, 6, 252 N.W. 282; 1 Tiffany, Landlord and Tenant (1910), p. 674 et seq., § 101. Where, however, the landlord agrees to repair and retains control over the premises, in whole or in part, for that purpose, to that extent his...