Smith v. State
| Decision Date | 23 January 1901 |
| Parties | SMITH v. STATE, to Use of WALSH. |
| Court | Maryland Court of Appeals |
Appeal from superior court of Baltimore city; Henry D. Harlan Judge.
Action by the state, for the use of Michael J. Walsh, against Mary E. Smith and another. From a judgment for plaintiff defendant appeals. Reversed.
Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PEARCE SCHMUCKER, and JONES, JJ.
Louis P. Hennighausen and Charles F. Stein, for appellant.
Horton Smith and Wm. M. Ballou, for appellee.
This action was brought for the use of Michael J. Walsh, the father of Sarah Walsh, for loss of the services of his child who was killed by reason of the alleged negligence of the appellant and Neptune E. Bowden in willfully and knowingly allowing a balcony on a house owned by the appellant, and rented to Bowden, to be in a dangerous condition. Mrs. Smith had owned the house since July, 1893, and some time in 1897 her agent rented it to Mr. Bowden, who continued to hold it, as monthly tenant, until after the accident, which happened on the 20th of August, 1899. She made no agreement to repair it or keep it in repair. Having a housekeeper in charge, the tenant rented one or more rooms to those applying for them. Walsh rented from the housekeeper, on the 19th of August, 1899, a front room on the second floor, and the next day took his child Sadie, who was 5 years and 6 months old, to the room. There was a back building along which a porch ran from the second story of the front building. Three rooms opened on the porch, and there was a stairway leading from the middle of it (between two of the rooms) down to the yard. Mrs. Sheckels, who was an acquaintance of Walsh, occupied the rear room, and in the afternoon of the 20th of August the little girl, with the permission of her father, went to Mrs. Sheckels' room to get some water, which she got, and started along the porch towards her father's room. Mr. Scott, who occupied the middle room on the porch, saw her go to Mrs. Sheckels', and just after she passed his window a second time he heard something fall. He then went onto the porch and saw the child lying below on the bricks. The balustrade had several openings in it, the balusters being out; the theory of the plaintiff being that the child fell through the one near Mr. Scott's door. He said that opening was about three feet wide, and the child was lying below it, and a "picket," as he called it, was lying by the child when he found her. She was killed by the fall. The testimony shows that the balustrade was in a bad condition, and had been for some time. Some of the witnesses thought it had been for some years, judging from the appearance and condition of the wood; but that was a conjecture. Mrs. Sheckels said, however, it was when she went there in December, 1898, and that it got worse; that the balusters would fall out if you touched them. It was admitted by the plaintiff's witnesses that the floor of the porch was sound. Some question seems to have been raised in the testimony as to the right of Walsh to use the porch, but his own evidence, as well as that of some of the other witnesses, was to the effect that it was used by all the occupants. That was the way, and apparently the only convenient way, to get into the yard, unless they went into the front hall. A number of prayers were passed on by the court, but, under the view we take of the case, it will only be necessary to consider the one which was refused, denying the right of the plaintiff to recover at all against the appellant. The case was dismissed by the plaintiff as to Bowden, and a judgment was obtained against the appellant, from which this appeal was taken.
The theory of the appellee is that at the time the property was rented it was unsafe and in a dangerous condition, which the owner knew, or could, by the exercise of reasonable diligence, have known, and therefore she was responsible to any one lawfully on the premises, who was injured by reason of that condition, although the property was in the possession of her tenant when the accident happened. In support of that position he relies upon Owings v. Jones, 9 Md. 108; Albert v. State, 66 Md. 325, 7 A. 697; State v. Boyce, 73 Md. 469, 21 A. 322; and other cases of a like character. There is no question about the responsibility, to strangers, of a landlord who leases premises which are a nuisance, or must become so by their user, and receives rent, whether he is in possession or not, if injury ensue. Nor do we doubt that he may be liable to strangers if he rents his property when it is in such condition as will likely produce injury; and, if the property be of a public character, he cannot with impunity rent it in an unsafe condition, and, if he does, may be required to answer to those who are brought upon it at the instance of his lessee for injuries they sustain. Our own cases have determined the liability of the owner in such cases. The injury complained of in Owings v. Jones was received by falling into a vault appurtenant to the property of the defendant, and built under the pavement of a public street. The boy who was injured was on a public street at the time, where he and the public had the right to be; and if the owner leased the premises with the vault appurtenant to it, which was either a nuisance at the time of the demise, or must, in the nature of things, become so by its user, then he was unquestionably liable, and could not protect himself by proving that at the time of the injury it was no longer in his charge. So, in Albert v. State and State v. Boyce the same principles are applied to the owners of public wharves. As was said in Albert's Case: And other cases might be cited, such as Railroad Co. v. Rose, 65 Md. 485, 4 A. 899, Irwin v. Sprigg, 6 Gill, 200, and Condon v. Sprigg, 78 Md. 330, 28 A. 395, to illustrate the duty of owners of property to protect the public against injury resulting from nuisances on or appurtenant to their premises when the public has a right to be there.
But those cases do not reach the question before us, which is: In the absence of fraud or concealment, is the landlord of the original tenant responsible for any injury sustained by a subtenant, by reason of the condition of the premises, when rented or afterwards,--such as a defective balustrade on a porch? There is no implied covenant requiring the landlord to make repairs. Gluck v. City of Baltimore, 81 Md 326, 32 A. 515. "When a lease contains no express contract of warranty that the property is or shall be fit for the purpose for which it may be rented, there is no implied warranty to that effect; and, in case the property falls down in consequence of some inherent defect, the lessor is not bound to repair, and yet the lessee will be compelled to pay the rent." Hess v. Newcomer, 7 Md. 337. After fully recognizing the landlord's liability to third persons not claiming under the tenant, it is said in Tayl. Landl. & Ten. § 175a, that: There are many cases to that effect, of which we will mention Doyle v. Railway Co., 147 U.S. 413, 13 Sup.Ct. 333, 37 L.Ed. 223; Moynihan v. Allyn, 162 Mass. 272, 38 N.E. 497; Gallagher v. Button (Conn.) 46 A. 819; Peterson v. Smart, 70 Mo. 34; Burdick v. Cheadle, 26 Ohio St. 393; Purcell v. English, 86 Ind. 34; Brewster v. De Fremery, 33...
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