Russell v. Little

• Decision Date: 07 September 1912
• Citation: 22 Idaho 429,126 P. 529
• Parties: F. B. RUSSELL, Respondent, v. T. K. LITTLE, Appellant
• Court: Idaho Supreme Court

126 P. 529

22 Idaho 429

F. B. RUSSELL, Respondent, v. T. K. LITTLE, Appellant

Supreme Court of Idaho

September 7, 1912

LANDLORD AND TENANT-IMPLIED COVENANT TO REPAIR-NEGLIGENCE OF LANDLORD-MEASURE OF DAMAGES-PROOF OF VALUE OF MERCHANDISE.

(Syllabus by the court.)

1. There are no implied covenants on the part of a landlord to repair the premises let or to keep them in repair, and the landlord is not bound to repair the premises let unless he has expressly covenanted so to do in his lease.

2. Where a tenant loses a stock of merchandise stored in the leased premises, and there was no covenant in the lease whereby the landlord was obligated to repair the premises or keep them in repair, and the tenant seeks to recover from the landlord the value of the goods destroyed by fire occurring in the building, on the ground that the fire was caused by defects in the heating plant or flue or the negligent operation and management of the furnace and heating plant held, that the recovery, if any shall be had, must be founded upon the law of negligence, and cannot rest upon the theory of an implied contract.

3. Where a tenant sues a landlord for the loss of merchandise caused by a fire, which the tenant alleges resulted from the carelessness and negligence of the landlord, but it is not alleged or shown that the negligence was criminal or that the loss was caused through any fraud on the part of the landlord, and it was not shown or contended that the tenant had an old and well-established business and business reputation at the particular place: held, that the measure of damages is the value of the goods at the time of the loss and that injury to the business or loss of profits cannot be taken into consideration in assessing damages.

4. In an action for destruction of a stock of goods, where the plaintiff testifies that the invoice was destroyed and that she cannot particularize or enumerate the goods, but that they were of the aggregate value of $1,250; held, that such evidence, though indefinite, is sufficient upon which to rest a verdict in favor of the plaintiff.

APPEAL from the District Court of the Seventh Judicial District for Canyon County. Hon. Ed. L. Bryan, Judge.

Action for damage. Judgment for plaintiff. Defendant appeals. Reversed.

Judgment reversed and a new trial ordered. Costs awarded in favor of appellant.

Cavanah Blake & MacLane and Smith & Scatterday, for Appellant.

Where there are no covenants to repair in a lease, the landlord is not liable upon contract or quasi contract for damages to the tenant's goods or person resulting from a defective condition of the demised premises; but such liability, where it exists, arises solely from negligence, and such negligence must be affirmative and positive--not merely the negative negligence or failure to repair, but positive misfeasance. (Jones v. Millsaps, 71 Miss. 10, 14 So. 440, 23 L. R. A. 155; Franklin v. Tracey, 117 Ky. 267, 77 S.W. 1113, 78 S.W. 1112, 63 L. R. A. 649; Gately v. Campbell, 124 Cal. 520, 57 P. 567; Angevine v. Knox-Goodrich (Cal.), 31 P. 529; Ward v. Fagin, 101 Mo. 669, 20 Am. St. 650, 14 S.W. 738, 10 L. R. A. 147; Brewster v. DeFremery, 33 Cal. 341; Krueger v. Ferrent, 29 Minn. 385, 43 Am. Rep. 223, 13 N.W. 158; Kuhn v. Heavenrich Co., 115 Wis. 447, 91 N.W. 994, 60 L. R. A. 585; Railton v. Tailor, 20 R. I. 279, 38 A. 980, 39 L. R. A. 246; Doyle v. U. P. Ry. Co., 147 U.S. 413, 13 S.Ct. 333, 37 L.Ed. 223; Bowe v. Hunking, 135 Mass. 380, 46 Am. Rep. 471; Keates v. Cadogan, 10 Com. B. 591.)

The measure of damages in such a case as this is simply the value of the goods destroyed, and plaintiff having testified as to the value of the stock of goods, any evidence as to her profits or as to the value of her business was not relevant in any way to show what the goods were worth, and was not appropriate to any issue in the case, but the admission of such testimony permitted the jury to add damages for purely speculative matters not recoverable under the law. (Weick v. Dougherty (Ky.), 90 S.W. 966; Casper v. Klippen, 61 Minn. 353, 52 Am. St. 604, 63 N.W. 737; City of Cincinnati v. Evans, 5 Ohio St. 594.)

It would only be simple justice to the defendant to require more definite testimony as a basis for a claim for damages from simple negligence, without any affirmative wrongdoing upon the defendant's part. (Schwartz v. Schembel, 53 N.Y.S. 829, 24 Misc. 733; Brooke v. Cunard S. S. Co., 93 N.Y.S. 369; Central Coal Co. v. Hartman, 111 F. 96, 49 C. C. A. 244.)

Griffiths & Griffiths, for Respondent.

Defendant not only erected and maintained a defective flue and furnace, but maintained and operated a heating plant and fire therein in a grossly careless manner, and it was through his carelessness and negligence in maintaining and operating this heating plant and fire that plaintiff's loss occurred. (Butler v. Cushing, 46 Hun (N. Y.), 521; Roussinet v. Rebout, 76 Cal. 454, 18 P. 423; Pike v. Brittan, 71 Cal. 159, 60 Am. Rep. 527, 11 P. 890; Hysore v. Quigley, 9 Houst. (Del.) 348, 32 A. 960.)

The evidence showed that respondent had an established business, which was destroyed by this fire; that this business was a well-established business, with well-known and uniform profits, and that it had a value of a specific sum. There is nothing submitted to contradict this evidence in any particular. It is not shown that there was any other place for this business to have been continued, and thereby kept together and saved to respondent. (Levison v. Myers, 24 Pa. S.Ct. (Pa.) 481; Talcott v. Crippen, 52 Mich. 633, 18 N.W. 392; Pereira v. Smith, 79 Cal. 232, 21 P. 739; Parke County Commrs. v. Sappenfield, 10 Ind.App. 609, 38 N.E. 358.)

The evidence as to the damage sustained by respondent is not speculation, guesses or estimates. The witness showed herself competent to testify as to these values. The evidence on this point was not objected to by defendant or disputed in any particular. The jury concluded that the plaintiff was entitled to recover the sum of $ 800--a sum much too small to compensate plaintiff for her loss, but fairly determined by the jury from the evidence submitted and of which determination neither plaintiff nor defendant now have the right to complain. (Shafer v. Wilson, 44 Md. 268; Allison v. Chandler, 11 Mich. 542; Oliver v. Perkins, 92 Mich. 304, 52 N.W. 609; Goebel v. Hough, 26 Minn. 252, 2 N.W. 847; Water v. Post, 13 N.Y.S.Ct. 363; Menard v. Stevens, 44 N.Y.S.Ct. (12 Jone & S.) 515; Hine v. Cushing, 53 Hun, 519, 6 N.Y.S. 850; City of San Antonio v. Royal (Tex.), 16 S.W. 1101.)

AILSHIE, J. Sullivan, J. Stewart, C. J., concurring.

OPINION

AILSHIE, J.

The respondent, who was plaintiff in the lower court, commenced her action for the recovery of damages for loss of a stock of merchandise caused by fire, and procured a judgment for the sum of $ 800. The defendant appealed.

The plaintiff had been the defendant's tenant for some months, occupying a room on the first floor or street grade, in which she had a stock of millinery goods and was conducting her business. The building in which plaintiff was engaged in business was rented to various tenants, and the landlord, the defendant herein, had control of certain rooms in the basement, in which he kept a heating plant for heating the various rooms of the building, and he had under his control and management the operation of the heating plant. About the 4th of January, 1910, a fire started, either in the furnace-room or the room occupied by the plaintiff. The room she occupied was immediately above the furnace-room, and the flue to which the furnace was connected passed through this room, or rather was in one of the walls to the room. The fire which occurred destroyed her entire stock of millinery, of the value of about $ 1,250. She sued her landlord for the value of the stock of goods destroyed and the additional sum of $ 500 for loss of profits and damage to her business. The evidence was not positive, but rather circumstantial, as to the cause of the fire. The plaintiff contended that the fire had started from the furnace, that the landlord had left an eight or ten inch hole open in the flue between the floor and the place where the pipe from the furnace entered the flue. The pipe had previously entered the flue through this opening, and when the pipe was removed the opening was simply covered with a piece of tin or galvanized iron nailed on to the side of the flue. It was also contended by the plaintiff, and evidence was introduced to that effect, that the walls of the flue were too thin for the size of the furnace. The defendant, on the other hand, introduced evidence tending to indicate that the fire might have started from an electric iron left with the current on in the millinery store. The evidence produced tended most strongly, however, to indicate that the fire had started from the furnace-room.

The only instruction given in the case with reference to this particular cause of action and the plaintiff's right of recovery and the defendant's liability was incorporated in the following instruction, to which the defendant took exception: "You are further instructed that, regardless of the condition of the flue, the defendant is not liable for damages, unless you also find that the fire was, in fact caused by the flue on account of its defective condition." The defendant asked the court to give the following two instructions, which were refused: (1) "You are instructed that, in the absence of an express agreement by the landlord to make repairs, the landlord is not liable to the tenant for damages caused by defects in the building existing at the time the lease was entered into." (2) "You are instructed that, under the facts in this case, the defendant is not liable to the plaintiff for...