Martel v. Malone
| Decision Date | 04 December 1951 |
| Court | Connecticut Supreme Court |
| Parties | MARTEL v. MALONE et al. Supreme Court of Errors of Connecticut |
Morton E. Cole, Hartford, A. Arthur Giddon and Cyril Cole, all of Hartford, for appellant.
Frederick C. Maynard, Jr., and Warren Maxwell, Hartford, for appellee (named defendant).
Anthony Tapogna, Hartford, for appellee Saint Oronzo Society Turesi, inc.
Before BROWN, C. J., and BALDWIN, INGLIS, O'SULLIVAN and ROBERTS *, JJ.
The plaintiff brought this action to recover for personal injuries sustained by a fall alleged to have been caused by the defendants' negligence in failing to maintain a stairway in a reasonably safe condition. The stairway, attached to the outside of a building owned by the defendant Malone, led from the ground to the second story, which was leased to the defendant St. Oronzo Society Turesi. The jury rendered a verdict for the plaintiff to recover from the defendant Malone only. On the plaintiff's motion, the court set aside the verdict in favor of the defendant society, and it has not appealed. The court also set aside the verdict against the defendant Malone on the ground that there was no evidence to warrant the jury in finding that he retained control over the stairway. The plaintiff has appealed.
Upon the most favorable construction of the evidence in support of the plaintiff's case, the jury could have found these facts: On December 9, 1946, and for a number of years preceding, the defendant Malone, hereinafter called the defendant, owned a two-story building on the south side of School Street in Bristol. It was surmounted by a shallow A-roofed attic with windows at each end. The first floor was occupied by two stores. The second floor consisted of one room with an outside door on the west which afforded the sole means of access and egress. There was a scuttle in the ceiling opening into the attic. An open outside stairway with seventeen treads and a handrail on its westerly side was attached to the west wall of the building. At the top of the stairway was a door opening into an inclosed landing, which was one step above the top tread and one step below the second floor. The door to the second-floor room was on the easterly side of the landing. The edge, or nosing, of the landing consisted of a narrow strip of one-inch board one and one-quarter inches wide which projected without support beyond the riser beneath and was nailed to the edge of the adjoining floor board. This constituted improper construction. Furthermore, the nosing would give when stepped upon and was cracked and somewhat decayed. By reason of this condition, which prevailed when the plaintiff fell and had existed for several years, the landing was not reasonably safe for use.
At the time of the plaintiff's fall and for some years before, the defendant society occupied the second floor as a club room under an oral month-to-month lease from the defendant at an agreed rental of $15 per month. On December 9, the plaintiff was engaged in carrying a 160-pound keg of beer up the stairs for delivery to the defendant society. After he had opened the door at the top of the stairs, and as he was stepping onto the landing, the nosing gave under him, causing him to lose his balance and fall down the stairs to the ground. He sustained the injuries complained of. Upon the case as claimed by the plaintiff, the question determinative of the appeal is whether upon these facts and all of the evidence the jury could properly have found that the defendant retained control of the stairway and landing.
An essential allegation in the complaint was that the defendant 'controlled' the portion of the stairway and landing which encompassed the defect. Ziulkowski v. Kolodziej, 119 Conn. 230, 232, 175 A. 780, 96 A.L.R. 1065. To establish liability, the burden of proving this rested upon the plaintiff. Hannon v. Schwartz, 304 Mass. 468, 470, 23 N.E.2d 1022. Whether a landlord in such a case has reserved control of a stairway ordinarily can best be determined by the intent of the parties as expressed in the terms of the lease. The only evidence of these terms in the instant case was the testimony of the defendant that the second floor, together with the stairway, was leased to the society at $15 per month, and that the society was to make such structural changes as it desired at its own expense. If it is assumed that the jury rejected this testimony in so far as it related to the stairway, as they could have, the record is left with no evidence of expressed terms in the lease that the stairway was included in the premises leased.
There was no evidence offered that the lease did not include the stairway. In the present case, however, whether it was included in the lease under the expressed terms thereof is not of controlling significance, because of the legal implications arising from the undisputed factual situation. Since the tenement leased was the second floor of the building and the only means of access or egress was this stairway, the right to use it was included in the lease as a matter of law. 'The appurtenances of ingress and egress, essential to use and reasonably within the contemplation of the parties at the time of the leasing, are as much a part of the room conveyed as the room itself.' 3 Thompson, Real Property, Perm.Ed., § 1165; Mayer v. Hazzard, 10 Cal.App.2d 1, 3, 51 P.2d 189. Where the lease is of a part of the building, under 'the general rule that those rights essential to the enjoyment of the demised premises * * * pass as appurtenant thereto the rights of ingress and egress pass to the tenant even though they are not specifically mentioned.' Trickett, Landlord & Tenant in Pennsylvania, 2d Ed., p. 48; Weigand v. American Stores Co., 346 Pa. 253, 257, 29 A.2d 484; Page v. Martini, Tex.Civ.App., 293 S.W. 253, 255; 32 Am.Jur. 165; 51 C.J.S., Landlord and Tenant, § 293, p. 946. The language of the Supreme Court of New Hampshire, referring to steps which served part of the building leased, and declaring that not only the right to use the steps but the steps themselves were included in the lease, is particularly apropos and holds true concerning the precise situation in the instant case: Flanders v. New Hampshire Savings Bank, 90 N.H. 285, 288, 7 A.2d 233, 235.
While it is true that the fact that the stairway was a part of the premises leased is not conclusive that the defendant had surrendered...
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