Marks v. Industrial Life & Health Ins. Co.

• Decision Date: 18 June 1948
• Docket Number: 16095.
• Parties: MARKS et ux. v. INDUSTRIAL LIFE & HEALTH INS. CO.
• Court: South Carolina Supreme Court

48 S.E.2d 445

212 S.C. 502

MARKS et ux. v. INDUSTRIAL LIFE & HEALTH INS. CO.

No. 16095.

Supreme Court of South Carolina

June 18, 1948

Leatherwood & Walker, of Greenville, and O. L Long, of Laurens, for appellant.

W H. Harley, of Laurens, for respondents.

TAYLOR Justice.

This appeal comes to this court from the Court of Common Pleas of Laurens County where respondents were awarded damages allegedly sustained through negligence of the appellant in causing and allowing a water closet which was situated on the floor immediately above to overflow and damage respondents' stock of goods.

Respondents operated a ladies ready to wear store on the ground floor and appellants maintained an office on the floor immediately above. There was another office occupied by the City Finance Company on the same floor and a toilet so located as to be used by these tenants. On the morning of April 10, 1946 respondents opened their place of business to find water from this toilet seeping from the floor above.

Respondents brought suit for damages against their co-tenant Industrial Life and Health Insurance Company without joining the other tenant, City Finance Company, or the landlord, alleging that their damages were caused by the wilful, wanton, careless and negligent acts of the appellants' agents and employees.

'As a general rule, a tenant in possession and control of premises will be liable for injury to the property of persons lawfully on the premises caused by the tenants' negligent use or maintenance of the premises.

'A lessee of a portion of a building leased to several tenants is liable to a cotenant for damage to the latter's property arising from the negligence of the former with respect to the part of the building leased to him. Thus, a tenant will be liable for injuries to the property of a cotenant on a lower floor resulting from the negligence of the tenant of an upper floor in allowing water to escape, when the latter is in exclusive possession of the premises where the negligence occurred, but the mere escape of water to the damage of the tenant below does not render the tenant of the upper floor liable therefor in the absence of proof of negligence.' 52 C.J.S., Landlord and Tenant, §§ 437, 438, page 115.

Testimony was adduced to the effect that at approximately 11:00 or 11:30 p. m. on or about April 9th, one William Wallace, while walking along the street, was hailed by a man in appellants' place of business, and asked to come up the stairs to such place of business. Upon doing so, he was informed by a person he did not know that he wished to sell him (the witness) some insurance. This person was drinking heavily and there were some beer bottles and at least one whiskey bottle and a book similar to those carried by insurance collectors on the table. Wallace went no farther than the door of defendant's office and although he saw no one but the person he had the conversation with, he heard at least two others talking therein. He did not care to buy insurance and so informed the occupant and was preparing to leave when he called attention to water running from the toilet out on the floor and was told to 'Never mind the water he was selling insurance'. Witness Wallace further testified...