Leuch v. Dessert

• Decision Date: 11 January 1926
• Docket Number: 19483.
• Citation: 242 P. 14,137 Wash. 293
• Parties: LEUCH v. DESSERT et al.
• Court: Washington Supreme Court

242 P. 14

137 Wash. 293

LEUCH v. DESSERT et al.

No. 19483.

Supreme Court of Washington

January 11, 1926

Department 2.

Appeal from Superior Court, Spokane County; Webster, Judge.

Action by Stuart Leuch, by his guardian ad litem, Bess Rogers against Victor Dessert and others. Judgment for defendants and plaintiff appeals. Affirmed.

Zent &amp Lovell and Ferris & Ferris, all of Spokane, for appellant.

Graves, Kizer & Graves, of Spokane, for respondents.

MACKINTOSH J.

J. E. Gandy, on November 8, 1919, owned a five-story brick building in the city of Spokane, and on that day leased to the respondents 'that part of the building * * * known as the Willard Hotel, the part of said building occupied by said hotel being more specifically described as follows, to wit: The lobby, whose entrance is known as South 108 Madison street, together with the basement thereunder, and the basement containing the heating plant and fuel room, and the basement adjoining the fuel room known as the kitchen basement, together with the second, third, fourth, and fifth floors of the building.' In the written lease there was contained an agreement that the respondents should make 'all repairs to the interior of the aforesaid demised premises, including any and all repairs to the plumbing, heating plant, and elevator, provided, however,' that the owner should make repairs to the heating and plumbing in that portion of the building not occupied by the respondents. It was further agreed that the respondents would not 'make or suffer to be made any repairs or alterations upon said premises or placing signs or awnings upon said building without the written consent of' the owner. The building was originally constructed in 1911, and contained on the ground floor storerooms other than the one leased to the respondents. On the roof was the opening of a light well which extended down through the building. Under a city ordinance of Spokane, in operation at the time the building was constructed, openings into such light wells from the roofs of buildings were to be guarded by copings not less that three feet in height. The coping around this light well was less than a foot high, and over it the minor child, who is the appellant here, fell, and this suit is brought for his resulting injuries; the claim being that the low coping was the proximate cause of such injuries. The case was withdrawn from the jury, and judgment entered in favor of the respondents at the conclusion of the appellant's testimony. This appeal was taken, and liability is sought to be impressed upon the respondents upon the hypothesis that the roof of the building had been leased to them and was in their possession, and they were therefore liable for the defect.

The leading question, and the one which is determinative of this proceeding, is as to what passed to the respondents under the lease. The rule seems to be established without any variation that, when the owner of a building leases not the entire building as an entity to one tenant, but lets it in parts to several tenants, each of them occupying a distinct portion of the building, and there is no absolute provision to the contrary, the owner is held to retain control over such parts of the building as are for common use of all, and is responsible for defects there existing. Under the lease before us the respondents assumed no right over or responsibility for the roof. It was not leased to them in terms nor by implication. They made no agreement to keep it in repair, and no duty was upon them to remedy any defects there existing. The fact that they were occupants of rooms immediately under the roof gave them no more privileges or use of the roof or responsibility for its maintenance and safe condition than any other tenant of the building. The roof was necessary for all the tenants; and, no provision being made for a transfer of its possession to any tenant, the control over it remained in the owner.

In the case of Seattle v. Puget Sound Improvement Co., 47 Wash. 22, 91 P. 255, 12 L. R. A. (N. S.) 949, 125 Am. St Rep. 884, 14 Ann. Cas. 1045, a situation analogous to the one here was under consideration. There the owner of the building had a trapdoor over an areaway in the sidewalk, used exclusively for the benefit of the building. The building itself had been leased to various tenants. There was nothing in their tenancy that gave them control of...