Olin v. Honstead

• Decision Date: 29 April 1939
• Docket Number: 6588
• Citation: 60 Idaho 211,91 P.2d 380
• Parties: ROBERT B. OLIN and LUCIE S. OLIN, Husband and Wife, Appellants, v. S. G. HONSTEAD, Respondent
• Court: Idaho Supreme Court

91 P.2d 380

60 Idaho 211

ROBERT B. OLIN and LUCIE S. OLIN, Husband and Wife, Appellants, v. S. G. HONSTEAD, Respondent

No. 6588

Supreme Court of Idaho

April 29, 1939

LANDLORD AND TENANT-NUISANCE-PRINCIPAL AND AGENT-FIRE ESCAPES-PLEADING-CONCLUSIONS.

1. Landlord who knows, or should know, that at time property is leased for public or semipublic purposes it is not safe for purposes intended or that dangerous condition exists in nature of nuisance, is responsible for resulting damages to third party, but for landlord to be so liable the nuisance must exist so as to render the premises unfit and unsafe at time tenancy commences.

2. Where room and balcony were in safe and proper condition when leased and their use as drugstore and beauty shop was lawful landlord was not liable to invitee of tenant who was injured in fire resulting from ignition of fireworks and other inflammable and explosive materials tenant kept in the drugstore, since landlord was not responsible for conduct of tenant's business or for dangerous conditions in the nature of a nuisance created or maintained on the premises by tenant after lease was executed.

3. Clause reserving to landlord right of ingress and egress for purposes of viewing, inspecting, repairing, and improving building, was inserted in lease in order to protect landlord's reversionary interest in the property and did not obligate landlord to make repairs or improvements.

4. Landlord was under no common-law duty to equip building, not shown to be more than one story, with fire escapes in absence of contract, statute, or ordinance requiring it. (I. C. A sec. 38-1401.)

5. In action for injuries resulting from fire, allegation that balcony was not provided or equipped with ordinary means of escape and egress by stairs, halls, doorways, or windows, was a statement of conclusions not of ultimate facts, and, where sufficiency of pleading was questioned by general demurrer, the pleader's conclusions could not take place of indispensable facts.

The foregoing syllabus is by West Publishing Company, that following is by author of opinion.

I. Where property is leased for public or semi-public purposes and at the time is not safe for the purposes intended, or when there is a dangerous condition on the premises, which is in the nature of a nuisance, and the owner knew, or by the exercise of reasonable diligence ought to have known, of such condition, he cannot evade liability to a third person for damages resulting therefrom.

II. For a landlord to be liable for damages to an invitee of his tenant, caused by a nuisance on the premises, it must have existed, and have been of such a nature at the time the tenancy commenced, as to render the premises unfit and unsafe for the purpose for which they were let.

III. A landlord is not the principal of his tenant nor responsible for his torts, active or negligent, nor for failure to keep the premises in repair, nor is he liable to a servant licensee or guest of the tenant, injured by a source of danger maintained by the latter.

IV. In the absence of contract, statute or ordinance requiring it, a landlord is under no duty to provide his building with fire escapes.

V. When the sufficiency of a pleading is questioned by general demurrer, the pleader's conclusions cannot be made to take the place of indispensable facts.

APPEAL from the District Court of the Seventh Judicial District for Canyon County. Hon. Thomas E. Buckner, Judge.

Action for damages for personal injuries. Judgment for defendant. Affirmed.

Judgment affirmed. Costs to respondent.

Richards & Haga, J. F. Martin, Hamer H. Budge, Delana & Delana, Scatterday & Scatterday, and Creed W. Mullins, for Appellants.

The landlord is liable for injuries to third persons or strangers on the premises when such injuries are caused by defects or conditions which existed on the premises at the time of the lease and by the character of the use of the premises made by the tenant or subtenant. (Tiffany, Landlord and Tenant, vol. 1, sec. 101, pp. 674, 675, 53 A. L. R. 327.)

When the landlord, knowing the condition of the premises, leases them for public or semi-public purposes and at the time of the lease the premises are unsafe for the use to which the tenant or subtenant intends to put them, the landlord is liable for injuries to strangers upon the premises. (Colorado Mtg. & Inv. Co. v. Giacomini, 55 Colo. 540, 136 P. 1039, L. R. A. 1915B, 364; Stenberg v. Willcox, 96 Tenn. 163, 33 S.W. 917, 34 L. R. A. 615; Copley v. Balle, 9 Kan. App. 465, 60 P. 656; Edwards v. New York & Harlem R. R. Co., 98 N.Y. 245, 50 Am. Rep. 659; Albert v. State, 66 Md. 325, 7 A. 697, Am. Rep. 159.)

When a landlord constructs a building on his premises in such a manner that its use for public or semi-public purposes makes it a nuisance, he is liable to third persons and invitees who are injured on the premises when such premises are being used by tenants or subtenants for public or semi-public purposes. (Colorado Mtg. & Inv. Co. v. Giacomini, supra; 16 R. C. L., sec. 589, p. 1069; 50 L. R. A., N. S., 288; Nugent v. Boston, C. & M. R. Co., 80 Me. 62, 67, 12 N.E. 797, 6 Am. St. 151; Ahern v. Steele, 115 N.Y. 203, 22 N.E. 193, 12 Am. St. 778, 5 L. R. A. 449, 451, et seq.; Swords v. Edgar, 59 N.Y. 28, 17 Am. Rep. 295.)

Hawley & Worthwine and A. L. Anderson, for Respondent.

At common law, no duty is imposed upon the owner of leased premises to provide fire escapes or emergency means of egress for the safety of the tenant or anyone upon the premises by the tenant's invitation or permission. (32 C. J., p. 220, sec. 904; Schmalzried v. White, 97 Tenn. 36, 36 S.W. 393, 32 L. R. A. 782; West v. Inman, 137 Ga. 822, 74 S.E. 527, Ann. Cas. 1913B, 276; 39 L. R. A., N. S., 744; Baugh v. McCleskey, (Tex. Civ. App.) 292 S.W. 950.)

In the absence of agreement, fraud, or concealment, there is no duty owing by the lessor to see that the premises are, at the time of the demise, in a condition of fitness for the purposes for which the lessee may propose to use them, and he is not liable to the tenant or third persons for injuries caused thereby. (1 Tiffany on Landlord and Tenant, pp. 556, 649, 650, secs. 86, 96; Bolden v. Independent Order of Odd Fellows, 133 Wash. 293, 233 P. 273; Runyon v. City of Los Angeles, 40 Cal.App. 383, 180 P. 837; Smith v. Buttner, 90 Cal. 95, 27 P. 29.)

The facts pleaded do not establish the existence of a public or private nuisance at the time of the demise. (Burdick on Torts, p. 405; 2 Jaggard on Torts, p. 747; Bigelow on Torts (7th ed.) p. 299; Bigelow on Torts (4th ed.) p. 260; I. C. A., secs. 51-101, 51-108; Bellevue v. Daly, 14 Idaho 545, 94 P. 1036, 125 Am. St. 179, 14 Ann. Cas. 1136, 15 L. R. A., N. S., 992; Boise City v. Boise City Canal Co., 19 Idaho 717, 115 P. 505.)

MORGAN, J. Givens, J., Acting C. J., and Lee, D. J., concur. Ailshie, C. J., and Budge, J., did not sit with the court at the hearing nor participate in the decision. KOELSCH, D. J., Holden, J., dissenting.

OPINION

MORGAN, J.

--This action was commenced by appellants against respondent and others to recover damages for personal injuries to Lucie S. Olin, caused by a fire which occurred in a room in a building owned by him. The room was leased by respondent and his wife to E. L. Drake, and a balcony therein was sublet by Drake to A. E. Varnadoe and Grace Brown, wife of Gus Brown. Respondent demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action against him. The demurrer was sustained and, appellants declining to further plead, judgment of dismissal in favor of respondent was entered. This appeal is from the judgment. Drake, Varnadoe and Grace Brown and her husband were also made parties defendant, but the appeal concerns only the case sought to be stated in the complaint against respondent.

It is alleged in the complaint that during the spring and summer of 1935 respondent, preparatory to erecting a building in Nampa, entered into negotiations with Drake, a prospective tenant, and together they planned and designed a room in it which was to be leased, used and occupied by Drake for the purpose of conducting a general drug store business, and other business approved by respondent as lessor; also they designed, as a portion of the room, a balcony to be used as an office room for Drake; that respondent applied for and obtained from the city engineer of Nampa a permit to erect the building and represented to him that the room was to be occupied and used as a general drug store and the balcony was to be used solely as an office therein. However, it does not appear what authority, if any, the city engineer had, nor whether or not the permit would have been granted had the representation not been made.

The room had a frontage of 23 feet and extended back from the street a distance of 100 feet; the balcony was constructed in the rear portion of the room and was 10 feet above the floor. It was approximately 23 feet wide and extended 30 feet from the rear of the building toward the front, and was constructed by respondent at the instance, request and with the approval of Drake. The balcony was reached by a narrow stairway along the southeasterly wall on the inside of the room and there was no other means of ingress or egress to and from it. There were no openings in the side walls of the balcony and the only openings in the rear wall thereof were three windows, each 2 1/2 feet high and 3 feet wide, the sills thereof being 52 inches above the floor of the balcony and the tops thereof being 17 inches below the ceiling. The sashes were hung on hinges from the top and swung upward and inward and the bottoms of the windows were 14 feet from the ground with no ladder or other means of...