Security Savings & Commercial Bank v. Sullivan

• Decision Date: 03 November 1919
• Docket Number: 3249.
• Citation: Security Savings & Commercial Bank v. Sullivan, 261 F. 461 (D.C. Cir. 1919)
• Parties: SECURITY SAVINGS & COMMERCIAL BANK et al. v. SULLIVAN.
• Court: U.S. Court of Appeals — District of Columbia Circuit

261 F. 461

SECURITY SAVINGS & COMMERCIAL BANK et al. v. SULLIVAN.

No. 3249.

United States Court of Appeals, District of Columbia.

November 3, 1919

Submitted October 10, 1919.

Appeal from the Supreme Court of the District of Columbia.

R. J Whitford, of Washington, D.C.(Darr, Whitford & Darr, of Washington, D.C., on the brief), for appellant.

T. H Patterson and Crandal Mackey, both of Washington, D.C., for appellee.

VAN ORSDEL, Associate Justice.

This is an action brought by appellee, plaintiff below, to recover damages for injuries sustained from a fall occasioned by a defect in one of the sidewalks of the city of Washington.

It appears that defendant Security Savings & Commercial Bank is the owner of the property adjoining the point in the sidewalk where the accident occurred.For the accommodation and use of the property a vault had been extended from the basement of the building under the sidewalk.In order to furnish light for the vault, what is known as a Hyatt vault light was placed in the sidewalk immediately over the vault.One of the glass blocks in the framework became broken or misplaced, and plaintiff, while traveling along the sidewalk, caught the heel of her shoe in the hole, was thrown, and sustained the injuries complained of.From a verdict and judgment against the bank and the District of Columbia, the bank has appealed.

At the time of the accident, and for a short time prior thereto, the first floor and basement of the building had been leased to the Associated Drug Stores.Under the terms of the lease, the drug company agreed to furnish heat for the entire building thereby assuming control of the heating plant in the basement.The vault under the sidewalk formed part of the furnace room.The balance of the building above the first floor was under the control of the bank, and rented by it, in part, to various tenants.

The appeal can be disposed of by consideration of the single assignment of error, to the effect that, the basement and first floor of the building being held under lease by the drug company, the tenant, and not the owner of the building is liable.It is settled law that where the owner of premises, by lease, parts with the entire possession and control of the premises, and the tenant, either by express provision of the lease or by the silence of the lease on that subject, assumes liability for the keeping of the premises in proper repair, the tenant, and not the owner, will be liable in case of an accident due to negligence in allowing the premises, or any portion thereof, to get out of repair.

The defendant bank here retained control over a portion of the building, and we think the safe rule, and one which has been sustained by able authority, is that, where a property owner, for the benefit of his property, secures an easement from the city to construct a vault or extension of the basement under the sidewalk, with permission to place in the sidewalk basement doors, a coal hole, or, as in this instance, a contrivance for lighting the vault and basement, so long as he retains any control whatever over the premises, he should be required to see that the condition thus created is kept safe and in good repair.

This is not a suit between landlord and tenant, nor one arising from the negligence of the tenant within the portion of the premises occupied by it, but a suit involving a member of the public, who was injured upon a public sidewalk.In determining liability, it is proper to consider the obligation which the owner of the property assumed toward the public in extending his building under the sidewalk, and creating a condition in the walk which, if allowed to become defective, would jeopardize the safety of the public.

The vault in question is an easement that belongs to the land, and the obligation of the owner to keep it in safe condition and repair--

'goes with the land, and cannot be discharged by a partial alienation of the land, at least, unless the alienation, if for a fixed term, carries with it the exclusive possession of the premises for that term.Entire possession by a tenant from foundation to roof doubtless involves the duty of keeping a grate in front of the premises in repair, which otherwise rests on the owner of the fee.But whoever, even by due permission, cuts a hole in the sidewalk for the benefit of his adjoining property, must use reasonable care to protect the public from danger on account thereof.Reasonable care requires that he should...