Murphy v. Illinois State Trust Co.

• Decision Date: 05 February 1941
• Docket Number: No. 25681.,25681.
• Citation: 375 Ill. 310,31 N.E.2d 305
• Parties: MURPHY v. ILLINOIS STATE TRUST CO.
• Court: Illinois Supreme Court

375 Ill. 310

31 N.E.2d 305

MURPHY

v.ILLINOIS STATE TRUST CO.

No. 25681.

Supreme Court of Illinois.

Dec. 16, 1940.

As Modified on Denial of Rehearing Feb. 5, 1941.

Action by Ethel Murphy against George W. Brichler, for injuries sustained in a fall into a cellarway. The Illinois State Trust Company was appointed executor. A judgment for the plaintiff was affirmed by the Appellate Court, Murphy v. Brichler, 305 Ill.App. 6, 27 N.E.2d 1003, and defendant executor appeals.

Affirmed.Appeal from Appellate Court, Fourth District, on Appeal from Circuit Court, St. Clair County; L. Potter Harriss, Judge.

Kramer, Cambell, Costello & Wiechert and Norman J. Gundlach, all of East St. Louis, for appellant.

Beasley & Zulley, of East St. Louis, for appellee.

PER CURIAM.

Plaintiff, Ethel Murphy (appellee here), began an action in the circuit court of St. Clair county to recover damages for personal injuries alleged to have been caused by the negligence of defendant, George W. Brichler. On a trial with a jury she recovered a verdict upon which judgment was entered. The Appellate Court affirmed the judgment (Murphy v. Brichler 305 Ill.App. 6, 27 N.E.2d 1003) and this court granted leave to appeal. Defendant's death was suggested and the representative of his estate has been substituted.

It was alleged in the complaint that defendant owned a two-story brick building, the first floor of which he rented to Pat Bowen for tavern purposes, and the second story, consisting of one apartment, he rented to Joseph Wright for residential purposes; that in the leasing to said tenants the defendant reserved the garage, the backyard, a concrete porch on the rear of said building, and a certain stairway leading from said porch to the basement under said building; that the porch and stairway were reserved for defendant's own use and the joint use of the tenants who occupied the two floors of the building. It was alleged that at 9:30 P. M. August 6, 1937, plaintiff fell into the cellarway, the doors to said cellarway being open, and that the accident was caused by the negligence of the defendant in not having the cellarway surrounded by guard-rail of some kind and in not having the back porch around the cellarway sufficiently lighted. Such allegations were denied by the defendant.

The grounds urged for reversal are (1) the court erred in denying the motion for a directed verdict; (2) there was error in the admission of evidence, and (3) error in the instructions.

The question presented on the error assigned as to the ruling on the motion for directed verdict is one of law and is as to whether the evidence in favor of the plaintiff, when considered to be true, together with the inferences which may legitimately be drawn therefrom, fairly tends to support the cause of action averred in the complaint. Ziraldo v. Lynch Co., 365 Ill. 197, 6 N.E.2d 125;Brophy v. Illinois Steel Co., 242 Ill. 55, 89 N.E. 684. Under this error defendant states the general rule that a landlord is not liable for injuries that occur to persons on the premises leased to a tenant and under the tenant's control, and contends the rule applies not only to the enclosed portions included in the leasing but extends to the entrances, passageways, cellarways and portions which are not under the exclusive control of the landlord. In support of such principle he cites cases such as Marcovitz v. Hergenrether, 302 Ill. 162, 134 N.E. 85, and West Chicago Masonic Ass'n v. Cohn, 192 Ill. 210, 61 N.E. 439,55 L.R.A. 235, 85 Am.St.Rep. 327. Plaintiff recognizes the general rule of liability of a landlord to be as stated by the defendant, but contends the evidence in this case shows defendant exercised such control over the back porch and cellarway as to bring the case within the rule announced in cases such as Payne v. Irvin, 144 Ill. 482, 33 N.E. 756,Mueller v. Phelps, 252 Ill. 630, 97 N.E. 228, and Burke v. Hulett, 216 Ill. 545, 75 N.E. 240.

The evidence shows the building was approximately 30 feet in width with a porch extending across the rear of the building. A rear door from the tavern opened on to the porch. A stairway extended from one end of the porch to the second story. The cellarway was located at the opposite end of the porch. The first floor was leased to Bowen for the operation of a tavern and the apartment on the second floor to Wright for residential purposes. The tavern and apartment were heated by one heating plant, located in the basement. The fuel was furnished at the expense of both tenants and both attended to servicing the plant. There was an inside stairway leading from the tavern to the basement. There was also a stairway from the second story to the tavern, thus furnishing the occupants of the apartment opportunity to go from the second floor through the tavern to the basement, and this way was frequently used by Wright and his family, but there is no evidence indicating that any such arrangement was contemplated as a part of the leasing. The occupants of the second story used the basement for laundry and storage purposes and the occupants of the tavern used it for storage. There is evidence that both tenants, in going to and from the basement, at times passed through the cellarway in question and that the ashes from the furnace were taken from the basement through the cellarway. The tenant Wright, testifying for defendant, stated he had nothing to do with the back porch except to the steps leading to his apartment. There is evidence to the effect that the defendant frequently entered the basement through the cellarway, but he testified he did not remember going to the basement through the cellarway more than three times. Taking into consideration the manner in which the building was leased and the use the tenants were required to make of the porch and cellarway in connection with the occupancy of their respective rooms, we conclude there was evidence tending to sustain the allegations of the complaint.

The rule is that where only a portion of the premises are rented and the landlord retains control of other parts of the same such as stairways, passageways, or cellarways, or where he rents the premises to several tenants, retaining control over a part of the same for the common use of the several tenants, he has the duty of exercising reasonable care to keep the premises in a reasonably safe condition and he is liable for an injury which results to persons, lawfully in such place, from failure to perform such duty. Shoninger Co. v. Mann, 219 Ill. 242, 76 N.E. 354, 3 L.R.A.,N.S., 1097.

Under this assignment of error the defendant contends plaintiff was guilty of contributory negligence. Such...