Landay v. Cohn, 214

• Decision Date: 07 May 1959
• Docket Number: No. 214,214
• Citation: 150 A.2d 739,220 Md. 24
• Parties: Bruce Richard LANDAY, Infant, etc. v. Herman COHN and Pauline Cohn, his wife, trading as Herman Cohn Company.
• Court: Maryland Court of Appeals

Page 24

220 Md. 24

150 A.2d 739

Bruce Richard LANDAY, Infant, etc. v. Herman COHN and Pauline Cohn, his wife, trading as Herman

Cohn Company.

No. 214.

Court of Appeals of Maryland.

May 7, 1959.

Alexander B. Kloze and S. Raymond Dunn, Baltimore (Amos I. Meyers, Baltimore, on the brief), for appellant.

William C. Holland, Baltimore, for appellees.

Before BRUNE, C. J. and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HAMMOND, Judge.

The infant plaintiff, six years old, seeks to recover from the owners of an apartment house for injuries suffered on a portion of the property retained by the landlords for the common use of the tenants, while he was a visitor of a child of a tenant.

Four declarations were filed successively and each was demurred to. The first three demurrers were sustained with leave to amend. The demurrer to the third amended declaration was sustained without leave to amend, and the appeal is from the judgment for the defendants for costs.

The appellant asks us to find a sufficient statement of a cause of action in any one of the four declarations or in their combined allegations. It is clear that the sufficiency of none of the first three is before us. Each contains the usual formal commencement and ending and is complete in itself, and each that followed the first was intended as a substitute for that, or those, which preceded it. Therefore, the first three declarations are to be regarded and treated as withdrawn, and the rulings on the demurrers as to them are not before us for review. It was so held flatly in Ellinger v. City of Baltimore City, 90 Md. 696, 45 A. 884, and Peninsula Produce Exchange v. American Express Co., 147 Md. 424, 433-435, 128 A. 403. The latter case distinguished Baltimore City v. Maryland Pavement Co., 130 Md. 454, 100 A. 770, wherein the amendment was by adding an additional count to the declaration, and the holding was that this was not a pleading de novo as is the case where a complete new narr. is filed as a substitute for the old. Under the circumstances of the case before us, we are constrained to consider only the sufficiency of the allegations of the third amended declaration.

The demurrer claims that there is not shown either the breach of any duty owed the infant plaintiff by the defendants, or facts which establish the relationship of the plaintiff to the defendants as other than a trespasser.

Where a landlord leases separate portions of a property to different tenants and reserves under his control halls, stairways or other parts of the property for use in common by all the tenants, he must use ordinary care and diligence to maintain the retained parts in reasonably safe condition. Seaman v. State, 213 Md. 359, 366, 131 A.2d 871; McKenzie v. Egge, 207 Md. 1, 7, 113 A.2d 95; Ross v. Belzer, 199 Md. 187, 190, 85 A.2d 799; Levine v. Miller, 218 Md. 74, 78, 145 A.2d 418. The duty stems from the responsibility engendered in the landlord by his having extended an invitation, express or implied, to use the portions of the property retained by him. Crown Cork & Seal Co. v. Kane, 213 Md. 152, 131 A.2d 470; 32 Am.Jur. Landlord & Tenant § 688, p. 563; 52 C.J.S. Landlord and Tenant § 417(b), p. 26; Prosser, Torts, 2nd Ed., § 80, p. 471. Such an invitation extended to a tenant includes the members of his family, his guests, his invitees and others on the land in the right of the tenant. Restatement, Torts, Sec. 360, comment (d); Prosser, op. cit., § 80, p. 471. It has been held that a child on the land at the invitation of the child of the tenant is entitled to the benefit of the landlord's obligation in this respect. Harakas v. Dickie, 224 Mo.App. 171, 23 S.W.2d 651; Coughlin v. Jones, 162 Misc. 843, 295 N.Y.S. 681, affirmed 254 App.Div. 854, 6 N.Y.S.2d 363. See also Mercier v. Bushwick Sav. Bank, 261 App.Div. 151, 24 N.Y.S.2d 666; and Annotation 26 A.L.R.2d 468, 477. There is an important qualification to the rule as to the duty of the landlord. His responsibility for the reasonably safe condition of premises retained under his control is limited to the confines of his invitation to use them, express or implied. It does not extend to the use of such premises for an unintended purpose. Levine v. Miller, supra, 218 Md. 74, 78-79, 145 A.2d 418; Restatement, Torts, Sec. 360, comment (d); Prosser, op. cit., § 80, p. 473; 32 Am.Jur. Landlord & Tenant § 690; 52 C.J.S. Landlord and Tenant § 417(b); Narkussen v. Mengedoht, 132 Neb. 472, 272 N.W. 241, 243, and cases cited therein; Ryerson v. Bathgate, 67 N.J.L. 337, 51 A. 708, 709, 57 L.R.A. 307; Seaman v. Henriques, 139 Conn. 561, 95 A.2d 701, 703; Cohen v. Davies, 305 Mass. 152, 25 N.E.2d 223, 129 A.L.R. 735; Wholey v. Kane, 16 App.Div. 166, 44 N.Y.S. 649.

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