Redden v. James T. McCreery Co.

• Decision Date: 27 May 1941
• Docket Number: C. C. No. 633.
• Citation: 15 S.E.2d 150,123 W.Va. 367
• Parties: REDDEN v. JAMES T. McCREERY CO., INC.
• Court: West Virginia Supreme Court

15 S.E.2d 150

123 W.Va. 367

REDDEN v. JAMES T. McCREERY CO., INC.

C. C. No. 633.

Supreme Court of Appeals of West Virginia.

May 27, 1941

Syllabus by the Court.

In the absence of an express agreement to do so, a landlord is not obligated to make repairs to leased premises.

Under the "common use rule", the law imposes on a landlord, in the absence of a special contract, the duty to exercise ordinary care to maintain in reasonably safe condition, premises owned by him and used in common by different tenants.

The degree of care required of a landlord of a family apartment is the care due the ordinary family of normal habit.

In action by tenant against landlord for death of tenant's son in a fire which allegedly resulted from defective condition of chimney and flue, a count in the declaration based on the "common use rule" without allegation either of control by the landlord of part of the premises in common use, or lack of exclusive control thereof by the tenant, was fatally defective.

In action by tenant against landlord to recover for death of tenant's son in fire allegedly caused by defective condition of chimney and flue, count in declaration alleging that landlord promised to examine chimneys and flues on the premises and if necessary to repair them, and that landlord examined and repaired a portion of the chimneys and flues on part of the premises occupied by third persons, but did not repair those on the portion of the premises occupied by the tenant, was insufficient to establish any duty in the landlord.

Generally a promise by a landlord to repair leased premises, where made without consideration, does not impose any liability on the landlord for injury caused by lack of repair.

Without a duty alleged, there can be no breach and resulting right accruing to the plaintiff in an action of trespass.

1. In the absence of a special contract, the law does not impose on a landlord the duty to exercise ordinary care to maintain in reasonably safe condition, premises owned by him, unless shown to be such as are used in common by different tenants and over which one tenant, as such, does not have exclusive control.

2. A gratuitous promise made by a landlord to his tenant to examine and repair, if necessary, leased premises, imposes no liability on the landlord for injury to the tenant caused by failure of the landlord to repair same.

Certified from Circuit Court, Raleigh County.

Action by John E. Redden, administrator of the personal estate of his infant son, Franklyn Redden, against the James T McCreery Company, Incorporated, to recover damages for the son's death from a fire allegedly caused by the defective condition of a chimney and flue in premises leased by defendant to John E. Redden. The trial court sustained a demurrer to both counts of plaintiff's declaration and on joint motion of the parties certified the ruling to the Supreme Court of Appeals.

A. D. Preston, Ashworth & Sanders, and J. K. Edmundson, all of Beckley, for plaintiff.

W. H. Sawyers, of Hinton, and File, Scherer & File, of Beckley, for defendant.

LOVINS Judge.

John E. Redden, administrator of the personal estate of his infant son Franklyn, instituted an action in the Circuit Court of Raleigh County against The James T. McCreery Company, Inc., to recover damages for his decedent's death, which resulted from a fire allegedly caused by the defective condition of a chimney and flue in premises leased by defendant to John E. Redden. The defendant filed a demurrer to an amended declaration containing two counts, assigning as grounds that the allegations in the declaration are not sufficient to show liability and that no contract is pleaded which would require defendant to keep the dwelling house occupied by plaintiff's decedent in repair. The trial court sustained the demurrer to both counts of the declaration and on joint motion of the parties certified its ruling to this Court.

The first count avers that the defendant owned a frame dwelling divided into two apartments; that John E. Redden rented one of said apartments from the defendant; that he and his family occupied the rented apartment until December 25, 1937, on which day the building was wholly destroyed by fire; that the flues and chimneys in the dwelling were constructed and maintained for the joint and common use of the two apartments; and that it was the duty of the defendant to use ordinary care to keep said flues and chimneys in a reasonably safe condition so that the same would not become a fire hazard, which duty the defendant failed to perform.

The second count is based upon the failure of defendant's agent, Wood, to fulfill a promise to examine the flues and chimneys maintained for the joint use of both apartments and to repair the same if necessary, which promise was allegedly made a short time before the fire in response to a request by John E. Redden and the tenant of the other apartment, Everette Redden. It is alleged that defendant's agent did examine and repair the chimneys and flues on the portion of the premises occupied by the other tenant and promised to proceed without delay on John E. Redden's side of the premises, but failed to do so.

Two basic principles of landlord and tenant law seem to be well established in this jurisdiction: First, in the absence of an express agreement to do so, the landlord is not obligated to make repairs to leased premises. Charlow v Blankenship, 80 W.Va. 200, 92 S.E. 318, L.R.A.1917D, 1149; Kline v. McLain, 33 W.Va. 32, 10 S.E. 11, 5 L.R.A. 400. The foregoing principle seems to be settled in a majority of jurisdictions in the United States, and is...