Kenny v. Barns

• Citation: 67 Mich. 336,34 N.W. 587
• Court: Supreme Court of Michigan
• Decision Date: 20 October 1887
• Parties: KENNY and others v. BARNS.

34 N.W. 587

67 Mich. 336

KENNY and others v. BARNS.

Supreme Court of Michigan

October 20, 1887

Error to circuit court, Wayne county.

Geo. W Radford, for plaintiffs and appellants.

Moore &amp Canfield, for defendant and appellee.

MORSE J.

The plaintiffs, as copartners under the firm name of Kenny, Adams & Co., leased the ground floor and basement of a building owned by defendant, at 207 Woodward avenue, Detroit. In this building they have carried on a retail dry-goods business since January, 1883. The upper floors of the building were rented by the defendant to various tenants; William Livingstone, Jr., acting as her agent, having ample power to act for her in the leasing and management of the building. On the second floor is a hall, which, at the time the cause of action in this suit arose, was leased to a secret society known as the "Royal Templars." The rest of this story was divided into offices, and rented to various persons. The third floor was leased to Kirchberg & Keenan, dealers in furniture. On the second floor was a water-closet, which was leased with the hall, and taken care of and looked after by the janitor employed by the Royal Templars. It was also by agreement, subject to the use of the employes of the furniture firm. On the eighth day of April, 1886, by a stoppage of the waste-pipe, the closet overflowed, and the water soaked or dripped through the ceiling upon the goods of plaintiffs, damaging them. They bring suit for this damage, alleging that it was the duty of the defendant to attend to said closet, and keep the same in good order, so that no damage might happen to the goods of plaintiffs, and that the damage was done by the neglect of the defendant to perform this duty, "by reason of the carelessness, negligence, and lack of attention" on the part of said defendant. No fault in the original construction of the closet is averred in the declaration. On the contrary, it is alleged that the "water-closet was so connected with the public sewerage system of the city of Detroit that when it was in good order the refuse and waste matter deposited therein passed off through the said public sewerage system." The question of the defective construction of the closet is therefore out of the case.

The evidence, on the part of the plaintiffs, shows that about six months after they took possession of the premises there was an overflow from this same closet, doing some damage. They notified Livingstone of it, and he promised to have the matter attended to, and some plumbing was done by his direction. Seven or eight months after this first overflow there was another. Livingstone was again notified, and promised to remedy it. This was in the winter of 1883 and 1884. They made no further complaint about the closet to Livingstone until after the overflow upon which suit is brought. Nor does it appear that they had any cause of complaint. It appears from the whole testimony, without any dispute, that the overflow was caused by an improper usage of the closet by some one not known. The closet, as found by the plumber on the morning of the overflow, was "stopped in what is called the trap or...