Redden v. The James T. McCreery Co. INC., (CC 633)

• Decision Date: 27 May 1941
• Docket Number: (CC 633)
• Citation: 123 W.Va. 367
• Parties: John E. Redden, Admr., Etc. v. The James T. McCreeryCo., Inc.
• Court: West Virginia Supreme Court

123 W.Va. 367

John E. Redden, Admr., Etc.

v. The James T. McCreeryCo., Inc.

(CC 633)

Supreme Court of Appeals of West Virginia.

Submitted April 15, 1941.

Decided May 27, 1941.

1. Landlord and Tenant

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. Landlord and Tenant

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.

Affirmed.

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

W. H. Sawyers and File, Scherer & File, 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 fulfil 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 de- fendant'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 but another way of stating that there is no implied agreement on the part of the landlord to make repairs to leased premises. See 18 Am. & Eng. Enc. L. (2d ed.) 215; Rosenberg v. Krinick, 116 N. J. L. 597, 186 Atl. 446; Clyne v. Holmes, 61 N. J. L. 358, 39 Atl. 767. The second principle, equally well settled and generally applied, may be denominated for want of a better term the "common use" rule. As stated in the case of Marsh v. Riley, 118 W. Va. 52, 188 S. E. 748, 749, "In the absence of a special contract, the law imposes on a landlord the duty to exercise ordinary care to maintain in reasonably safe condition, premises owned by him and used in common by different tenants. So far as a breach of this obligation subjects the landlord to liability for bodily harm, the obligation is a tort duty." To the same effect, Lowe v. Investment Co., 119 W. Va. 663, 196 S. E. 490. The degree or measure of care required of a landlord of a family apartment is stated to be the care due the ordinary family of normal habit. Marsh v. Riley, supra; Lowe v. Investment Co., supra, and cases cited therein. Generally as to landlord's liability for failure to clean chimney flue in tenant's apartment, see Cooper v. Lawson, 139 Mich. 628, 103 N. W. 168.

The first count of the declaration alleges that the chimneys and flues were constructed and maintained for the common use of both...