Reichenbacher v. Pahmeyer

• Decision Date: 28 February 1881
• Citation: 8 Ill.App. 217,8 Bradw. 217
• Parties: HENRY A. REICHENBACHERv.ERNEST PAHMEYER.
• Court: United States Appellate Court of Illinois

8 Ill.App. 217

8 Bradw. 217

HENRY A. REICHENBACHER

v.ERNEST PAHMEYER.

Appellate Court of Illinois, Fourth District.

February Term, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Madison county; the Hon. AMOS WATTS, Judge, presiding. Opinion filed April 7, 1881.

Mr. CYRUS HAPPY, for appellant; contending for the right to recover against the landlord, cited Gridley v. City of Bloomington, 68 Ill. 47; Stephani v. Brown, 40 Ill. 428; Shearman & Redfield on Negligence, § 502; Godfrey v. Hagerty, 20 Pa. St. 387; Campbell v. Portland Sugar Co. 16 Am. Rep. 503, Eakin & Brown 1, E. D. Smith, 44; Rosewell v. Prior 12 Mod. 635; Congreve v. Smith, 18 N. Y. 79; Irwin v. Fowler 5 Robertson, 482.

Messrs. METCALF & BRADSHAW, for appellee.WALL, P. J.

This was an action on the case by appellant against appellee. The court sustained a demurrer to the declaration, and whether that ruling was correct is the question for consideration. The third count alleges in substance that the defendant was the owner of a certain building, erected and used for a hotel in which was a public bar room. In said room was a chandelier for the purpose of holding lamps to be filled with oil with which to light the room; that said chandelier was suspended from the ceiling, by the defendant, in so negligent, careless and inartificial a way, as to be dangerous and unsafe to use, and that defendant knowing this, leased the house to one Langley to be used for the purpose aforesaid, and failed to inform him of the defect, which was not apparent to an observer; that plaintiff, as an employe of Langley, while in the room attending to his proper duties, and while exercising due care, etc., was injured by reason of the falling of the chandelier from the cause aforesaid, and thereby the plaintiff was severely burned and suffered the loss of his clothing, watch, and other articles that were on his person at the time.

It is a general rule that the owner of a building which is occupied by a tenant, is not responsible for injuries arising from a failure to keep the premises in good repair, unless, first, the landlord had, by express agreement with the tenant, agreed to repair, so that in case of recovery against the tenant he would have his remedy over, and in that case to avoid circuity of action the party injured may, in the first instance, sue the landlord; or, second, unless the premises are let with a nuisance upon them by means of which the injury complained of is received. Gridley v. City of Bloomington, 68 Ill. 47, and the authorities there cited. A nuisance is anything that unlawfully worketh hurt, inconvenience or damage. 3 Bl. Com. 216, and it may result from nonfeasance or negligence as well as from misfeasance or malfeasance: Wood on Nuisances Chap. 1. It is said in Shearman & Redfield on Negligence, Sec. 56: “The rule seems to be that if the injury results from the negligence of the owner either in constructing or upholding the property, he is responsible, but that he is not in general responsible for the negligence of the tenant in the use of the house.” Wharton on Negligence, Sec. 727 a, and Wood on Nuisances, Sec. 141. It is also, no doubt, true that in the leasing of premises there is no implied warranty that they are fit for a particular use, and that liability, if any, in this class of cases does not spring from contract but must be predicated upon the negligent act or omission of the landlord, the same being the proximate cause of the injury, in reference to a matter where it was his duty to use ordinary care out of respect to the rights of others liable to be thereby directly involved, and for an injury thus arising a recovery may be had where there is no such contributory negligence on the part of the plaintiff as would bar the remedy in other actions for negligence. We have...