Longbotham v. Takeoka
| Decision Date | 08 September 1925 |
| Citation | 239 P. 105,115 Or. 608 |
| Parties | LONGBOTHAM v. TAKEOKA. |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.
Action by Thos. Longbotham against S. Kajikawa and another. S Kajikawa having died pendente lite, D. Takeoka as his administrator was substituted as defendant. From a judgment in favor of the plaintiff the defendants appeal. Affirmed.
H. H. Riddell, of Portland (W. H. Fowler and H. H Riddell, both of Portland, on the brief), for appellants.
Johnston Wilson, of Portland (Johnston Wilson and Elton Watkins, both of Portland, on the brief), for respondent.
This action was originally commenced by the plaintiff against S Kajikawa and T. Sumida as defendants. The first named defendant died pendente lite, and D. Takeoka, as his administrator, was made defendant in his stead.
The defendants are the owners in fee of a three-story brick building covering a half block in the city of Portland. The rooms on the first floor are used as stores. Those above are used and occupied by the defendants as a hotel. The plaintiff was a tenant of one of the storerooms from month to month paying rent to the defendants. For the purpose of giving light and ventilation to the interior rooms of the hotel on the second and third floors of the building, an open light well 10 feet wide by 60 feet long had been constructed extending from the first story upwards so that under the light well the building was, in effect, only one story high. In the light well was a skylight over the back part of the store occupied by the plaintiff. In other words, the plaintiff's storeroom was partly covered by the floor of the light well and lighted in part in the rear by the skylight.
The plaintiff was a dealer in player pianos, together with paper music rolls used in that class of instruments, and had a number of them stored in the back part of his store under the light well and skylight. He charges in substance that the building is so constructed that the entire roof is drained into the light well, and thence by a drain pipe running down through the ceiling of the room he had rented and occupied as a store and into the basement, under the store, where it was connected with and discharged into the city sewer. In this drain pipe, and situated just below the ceiling of his store, was a closed trap, which he says was permitted by the negligence of the defendants to become clogged up during the summer of 1921, so that the pipe would not carry off the water that fell on the roof of the whole building and ran into the light well. He disclaims control of any of the building outside of his store, and imputes to the defendants the authority and control over all the remainder of the building, including the roof. He avers substantially that about September 17 and 18, 1921, during a rainstorm happening Saturday night and the following Sunday, the water falling on the entire roof of the whole building flowed into the light well, and, owing to the stoppage of the drain pipe there, backed up and accumulated in such quantity that it forced its way through the roof and around the skylight, and deluged his pianos and music rolls, to his damage in the sum of $3,338.50 A further claim of $300 for loss of prestige to and hindrance of his business was disregarded and taken from the jury by the court at the trial, and requires no further notice.
The answer of the defendants traverses all the averments of the complaint in any way imputing liability to them. They allege that the plaintiff was in occupancy of the storeroom when they purchased the building, and that he knew and they did not know the condition of the drainage system involved and the probability of damage resulting therefrom. They impute to the plaintiff contributory negligence in that, with knowledge of the defective drainage system and of its having given him trouble on previous occasions, he failed to repair the same or to protect his goods or to inform the defendants of the defect. The reply traversed the new matter in the answer.
The result of a jury trial was a verdict and judgment for the plaintiffs, and the defendants have appealed. It is assigned as error that the court refused to strike out the testimony of the witness Irwin regarding the value of the pianos, because he testified what they would be worth to him. It is of course material on the question of damages to ascertain the reasonable market value of the injured property immediately after the happening of the accident. Irwin was a sales manager in the music department of a large mercantile establishment, and had been engaged for several years in appraising and selling pianos. On cross-examination the witness testified as follows in response to the questions here set down:
As one connected with the piano trade as he was, the witness manifestly regarded the market value of the instruments and what he would give for them as synonymous, and so explained himself in answer to the questions asked by the trial judge. There was no error in refusing to strike out his testimony on the ground suggested.
Another fault ascribed to the trial court was its refusal to strike out the deposition of the witness Foley and his answers to interrogatories propounded to him about the condition of the pianos after the rainstorm. It was charged in the complaint that the instruments were damaged September 17 and 18, 1921, and Foley said he saw them in October of that year. The defendants, as ground for striking out his testimony, urged that his view of the pianos was too remote, and that it did not appear that they were then "in the same condition they were in immediately after the alleged injury was consummated." There was no error in the ruling of the court on this question. The objection went rather to the weight than to the competency of the deposition. Besides that, there is testimony in the record from which the jury might well believe that Foley inspected the property on Monday, the day following the rain, and that he was mistaken or wrongly reported in the statement that he saw the pianos in October.
According to the argument appearing in the brief of the defendants and as stated at the hearing, their principal contention is that this is a case within the well-known rule that, in the absence of an express covenant by the landlord to make necessary repairs, the tenant is the one to keep up the leased premises. The reason for the precept is that the tenant takes the estate as he finds it, with its advantages and its drawbacks, and if he would protect himself against the expense of betterments, he must either not acquire the tenancy or exact from the landlord a covenant to make the repairs necessary to the enjoyment of the estate.
But the application of the rule cannot be extended beyond the estate demised. The tenant cannot be held to repair that over which he has no authority. Responsibility, whether of the landlord or the tenant, follows and is measured by the control lodged in one or the other. Merely because A. is landlord and B. is tenant does not excuse A. from liability for damage he inflicts upon B. by operation of an appliance in the control of the former. Tennant v. Hull, 27 N. B. 499, cited by the defendants, was a case where the roof to be drained covered the plaintiff's room as well as those above occupied by his landlord. The jury...
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