Starr v. Sperry

• Court: Iowa Supreme Court
• Writing for the Court: LADD, J.
• Citation: Starr v. Sperry, 184 Iowa 540, 167 N.W. 531 (Iowa 1918)
• Decision Date: 13 May 1918
• Parties: WILLIAM STARR, Appellee, v. EMMA G. SPERRY, Appellant

167 N.W. 531

184 Iowa 540

WILLIAM STARR, Appellee, v. EMMA G. SPERRY, Appellant

Supreme Court of Iowa, Des Moines

May 13, 1918

REHEARING DENIED SEPTEMBER 30, 1918.

Appeal from Polk District Court.--HUBERT UTTERBACK, Judge.

ACTION to recover damages consequent on the falling of a radiator in defendant's building on plaintiff's foot. From judgment against her, the defendant appeals.

Reversed.

Read & Read and Blake & Blake, for appellant.

C. C Putnam, for appellee.

LADD J. PRESTON, C. J., EVANS and SALINGER, JJ., concur.

OPINION

LADD, J.

The plaintiff, at the time in question, was employed as a press feeder by the National Printing Company. Its shop was on the second floor of defendant's building. In the morning of April 1, 1916, he passed along the hallway to the entrance therefrom into said shop; and, as the door was fastened, turned back; and, as he passed a radiator in the hallway against the wall or partition, a few feet from the door, it toppled over and crushed his foot. It was not connected with the heating system, but had been removed from the company's room in October, 1915, by the company or its landlord, Chiesca, or both, and placed in the hallway, where it had continued since. The theory of the plaintiff is that defendant, in leasing the premises, impliedly reserved control and possession of the hallway, and was bound to exercise ordinary care to maintain the same in a reasonably safe condition for use of the tenants and others, and failed so to do. Of course, the radiator in itself was not a dangerous instrumentality, and, if it became such, this was due to a leg's falling out, or other loss of support. As persons were making use of the hallway continuously, the place would not seem an appropriate locality for its storage, and there was room for inquiry as to whether the attention an ordinarily prudent person would have bestowed was given to its condition. This duty, however, was incumbent upon the person having control of such hallway, and our inquiry is directed to ascertain, if possible, who this was. This building, consisting of three stories, is at the southwest corner of West Second and Walnut Streets, known as 200, 202, and 204 Walnut Street, and is owned by defendant. Prior to January 1, 1916, it had been leased to one Chiesca, who had sublet the second floor to the National Printing Company, under which name one Hutton operated a printing establishment. The latter had leased "the divided west portion of room over 204 West Walnut on second floor" to the Volunteers of America, from December 1, 1914, to December 1, 1918, and the latter were in possession under this lease when the defendant executed a lease to the National Printing Company of "the second floor of the premises commonly known as Numbers 200, 202, 204 of West Walnut (Walnut) Street in the city of Des Moines, Iowa, except space of 12 feet by 12 feet in the southeast corner thereof, which is reserved for purpose of elevator in case first party (defendant) desires to place one in the premises." The term was from January 1, 1916, to January 1, 1918. The conditions were such as are ordinarily, inserted in such instruments, and only those following need be mentioned:

"8. It is expressly understood and agreed that lessor shall not be liable for damages or injury to lessee or his family or property or to his employees or their property from whatever cause arising unless the direct result of lessor's culpable neglect or gross carelessness. * * *

"21. If the property herein leased is other than a separate private residence, lessee agrees further not to obstruct the halls or stairways, and to only use same for passage to and from premises leased; not to cover or obstruct any of the skylights or windows that admit light in the courts, halls, or passageways, and not to paint or affix any sign, except with written consent of lessor indorsed hereon.

"25. Lessor agrees to furnish heat from date to May 1st, and from October 1st to May 1st in each year during continuance and life of lease."

The privilege to enter for the purpose of repairs was accorded the lessor, and either party might terminate the lease after July 1, 1916, on 60 days' notice. The lease contained no express reservations, other than as stated. A lease of the third floor was executed by defendant to the Volunteers of America, with same conditions, save as to use, and for the same term,--that is, for two years from January 1, 1916,--of the third floor and the ground floor of No. 204; and a like lease was made to others of the first floor of Nos. 200 and 202. The following contract was entered into, January 7, 1916, by defendant and H. J. Illsley, in charge of the Volunteers of America:

"That, in consideration that second party, H. J. Illsley, employ and pay for all janitor help necessary, and purchase and promptly pay for all fuel required and necessary, and shall furnish sufficient and necessary heat required for properly heating the building at Numbers 200-202-204 West Walnut Street, in the city of Des Moines, Polk County, Iowa, for the months of January, February, March and April, 1916, for the sum of one hundred dollars ($ 100.00) per month for each of said months, and same to be in full payment for same, and in consideration thereof, first party agrees to allow said sum of one hundred dollars ($ 100.00) per month for said four months for said heating, and to apply each month's payment of one hundred dollars ($ 100.00) upon the rental due and payable for each of said months under the lease with the Volunteers of America, a tenant occupying a portion of said building, and of which said Illsley is manager."

It will be observed that Illsley is to "employ and pay for all janitor help necessary." There is no indication as to what may have been necessary, and the agreement throws no light on the inquiry as to the control of the hallway; nor can it be said that anything done thereunder indicated that defendant had assumed such control. The hallway was swept and scrubbed at the instance of Illsley; but for all that appears, this may have been done because of making use thereof in connection with the office and rooms of the Volunteers of America on the second floor.

The law is well settled that, in the absence of stipulation to the contrary, the lessee takes the demised property in the condition it is at the time leased, and the landlord is under no obligation to repair the same unless the defect be latent, nor is he liable for injury sustained by a tenant, his family, guests, or others, consequent upon its defective condition. In other words, in the absence of contract, there is no implied undertaking that the premises are or shall be made suitable for the use of the tenant. Boyer v. Commercial Building Inv. Co., 110 Iowa 491, 81 N.W. 720. This rule, however, does not apply to those portions of the building (such as passageways, stairways, and the like) that are not demised to the tenant, but are retained in the possession or control of the landlord. With respect to such ways, it is well settled in this state that the landlord is under the same responsibility as the general owner of real estate who holds out an invitation to others to enter upon and use his property, and is bound to exercise reasonable care in keeping such ways ordinarily safe for the tenants and those having lawful occasion to use them. Burner v. Higman & Skinner Co., 127 Iowa 580, 103 N.W. 802; Morse v. Houghton, 158 Iowa 279, 136 N.W. 675; Flaherty v. Nieman, 125 Iowa 546, 101 N.W. 280. As pointed out in Siggins v. McGill, 72 N.J.L. 263 (3 L. R. A. [N. S.] 316, 62 A. 411):

"In a case of a demise, the entry and occupancy are pursuant to an estate vested in the tenant, and are...