Kern v. Myll

• Citation: 45 N.W. 587,80 Mich. 525
• Court: Supreme Court of Michigan
• Decision Date: 09 May 1890
• Parties: KERN v. MYLL.

45 N.W. 587

80 Mich. 525

KERN v. MYLL.

Supreme Court of Michigan

May 9, 1890

Appeal from circuit court, Wayne county; GEORGE GARTNER, Judge.

Geo. X. M. Collier, for appellant.

Wm. Look and H. F. Chipman, for appellee.

CHAMPLIN, C.J.

The court directed a verdict for the defendant on the ground that the plaintiff's declaration did not disclose a cause of action. There are two counts in the declaration. The first sets out that "on the 1st of May, 1885, and from thence to the commencement of suit, Kern was possessed, by virtue of a leasehold interest, of a certain dwelling-house, grocery store, and saloon in the city of Detroit, at Nos. 219, 221 and 223 Croghan street, wherein his family dwelt, and he did business; that the defendant, Myll, was the owner proprietor, and landlord of the premises, and as such ought to have built a dwelling that human beings could dwell in without injury to their lives and health, and with a proper and customary drainage required for premises of like character in a large city, and ought to have caused to be properly filled in with solid earth one certain well upon said premises before placing said building upon said premises, and ought to have caused to be built the necessary drains to carry away the surface water, in order to have said premises a fit place for human beings to inhabit without danger to their lives or health. Nevertheless the defendant well knowing the premises, but contriving, wrongfully and unjustly, intending to injure, prejudice, and aggrieve the plaintiff, and to incommode, annoy, and cause the plaintiff and his family to contract serious diseases, and to become ill and die, in the possession, use, occupation, and enjoyment of said dwelling-house, store, and saloon, from the 1st day of May, 1885, up to the time of commencing this suit, and for a long space of time hitherto, and on or about ten years before the commencement of suit wrongfully, unjustly, suffered, permitted, and caused to be built an addition upon said premises covering a portion of the ground thereof, upon which was an open well containing a large quantity of water, and said defendant, before the erecting of the building over said premises, caused said well to be partially filled with rubbish and refuse matter, leaving a large quantity of water remaining in said well undrained, and with no provisions that the water should be drawn off from said open well, which then operated as a cess-pool for the entire premises, and then erected the said addition to the building upon said premises, by placing the joists upon the earth without any excavation or drains whatever, immediately over said open well or cess pool, and suffered and permitted the said open well or cesspool, filled with all manner of rubbish, and containing a large quantity of water, to be and continue up to the time, to-wit, on the 1st day of May, A. D. 1885, when the said defendant leased said premises to said plaintiff from month to month, with rent payable monthly in advance, at the rate of $40 per month, and at the same time not in any manner disclosing to said plaintiff the concealed source of danger to life and health of the said plaintiff and his family, known by him, the said defendant, to be such, and not discoverable by the said plaintiff, the tenant, the said cesspool or open well being securely covered up by the floor in said house, and the said plaintiff having no knowledge, or means of knowing, that there was concealed a source of great danger to life and health under and beneath the said building upon said premises; and said defendant wrongfully and unjustly suffered and permitted the said open well or cess-pool to be and continue, the same during all that time, that is to say, from the 1st of May, A. D. 1885, up to the time of the commencement of this suit, for want of needful and necessary reparation thereof; and by means thereof, on the day and year aforesaid, and on divers days and times during that time before and after the renting of the said premises by said plaintiff from said defendant, divers large quantities of excrement, filth, dead rats, and other vermin were collected in said cess-pool or well unto and into the said premises as aforesaid, and stayed, continued, and remained therein during all the time aforesaid. And also, thereby, divers noisome,...