Williamson v. Wellman

• Decision Date: 19 March 1931
• Citation: 158 S.E. 777
• Court: Virginia Supreme Court
• Parties: WILLIAMSON. v. WELLMAN.

158 S.E. 777

WILLIAMSON.

v.WELLMAN.

Supreme Court of Appeals of Virginia.

March 19, 1931.

Rehearing Denied June 19, 1931.

Evidence showed that timber in outside platform was exposed to water which collected in cracks, causing timber to decay, that landlord knew plan on which platform was constructed, and that landlord's agent collecting rent saw platform every week but made no examination other than what he could see as he walked up steps. Platform collapsed as result of rotten condition of timber, causing injury to invitee on premises.

Evidence showed that invitee walked up steps of platform assuming approaches were in good condition. Only evidence tending to show defect was obvious was testimony of tenant, who stated that on careful view condition might have been seen, but agent of landlord having full authority to make repairs had visited premises on day of accident and saw nothing wrong with approach.

Code 1924, § 1887 (12), provided that employee who was entitled to benefits of act and was injured by a third party must elect which remedy he would pursue, and specifically provided that acceptance of award was bar to other remedies.

Error to Corporation Court of Danville.

Action by J. W. Wellman against W. W. Williamson. Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

Argued before CAMPBELL, HOLT, EPES, HUDGINS, and BROWNING, JJ.

Meade & Meade, of Danville, for plaintiff in error.

Carter & Talbott, of Danville, and Wyndham R. Meredith, of Richmond, for defendant in error.

HUDGINS, J.

This is an action by J. W. Wellman against W. W. Williamson to recover damages for injuries received when a platform on which Wellman was standing collapsed. The verdict was for the plaintiff below and was approved by the trial court. There are numerous errors assigned. A brief statement of the facts is essential to an intelligent understanding of the legal points involved. For convenience, the parties will be referred to in the position they occupied in the court below.

The defendant owned a two-story house in the city of Danville. The second floor was divided into two separate flats consisting of two rooms each, and rented to separate tenants. The only means of ingress and egress to these apartments was by an outside stair-way, at the top of which was an uncovered platform from which doors opened into each flat. Neither the stairway nor the platform was divided by railings.

The plaintiff was a collector for an industrial insurance company and used these approaches every week for the purpose of collecting premiums from some of the occupants of these flats. On one of these business calls, while he and an inspector of the industrial insurance company were standing on theplatform, it broke loose from the house and precipitated both parties to the ground below, severely injuring the plaintiff. This action against the owner followed.

The defendant contends that the plaintiff did not prove that the possession and control of the approaches was in the landlord; that the plaintiff was not the invitee of the defendant; that there was no privity of estate or contract between him and the plaintiff, and hence he owed the plaintiff no duty except that due a licensee; that even if the plaintiff stood in the shoes of the tenant, the defendant owed him only the duty to maintain the approaches in the same condition they were at the time of letting; that the condition of the premises was obvious, in full view, known to the tenants, and this knowledge was imputed to the tenants' invitee; that there was no defect in the premises known to the defendant.

The occupants of these two flats were several and not joint tenants of the owner. The only approach to the second floor was the stairway and platform. It was thereby clearly designed to be used in common and was, in fact, so used by the separate tenants. Neither of the tenants could have exclusive control or exclusive use and occupancy of these approaches. Therefore neither would have any responsibility for keeping them in repair or in proper condition for the use of the other. It follows that the possession and control of the stairway and platform remained in the landlord. Roman v. King, 289 Mo. 641, 233 S. W. 161, 25 A. L. R. 1263; Davies v. Kelley, 112 Ohio St. 122, 146 N. E. 888.

One of the tenants testified that after the platform fell she remained in her room until the agent of the landlord came and temporarily fixed the same, and later it was permanently repaired by the landlord.

While there is some evidence showing that the plaintiff used the stairway and platform for the purpose of collecting insurance premiums from parties occupying both flats, he finally based his right of recovery on the fact that he was collecting insurance premium from Emma Hairston, who was employed as a cook by one of the tenants.

The contention of the defendant that he owed the plaintiff, as an invitee of the tenant, only the duty to maintain the approaches in the condition they were in, or appeared to be in, at the time of letting, and that the invitee of the tenant has no greater right in the use of the premises than the tenant, seems to be supported by the following Massachusetts cases: Conroy v. Maxwell, 248 Mass. 92, 142 N. E. 809; Blaufarb v. Drooker, 251 Mass. 201, 146 N. E. 242, 39 A. L. R. 291; Webber v. Sherman, 254 Mass. 402, 150 N. E. 89; Lack v. McMahon, 254 Mass. 484, 150 N. E. 225; Kir-by v. Tirrell, 236 Mass. 170, 128 N. E. 28.

In Looney v. McLean, 129 Mass. 33, 37 Am. Rep. 295, the wife of the tenant was allowed to recover for injuries sustained in a common passageway, possession, and control of which was retained by the landlord, on the ground that it was the landlord's duty to keep the same in repair.

In Woods v. Naumkeag Steam Cotton Co., 134 Mass. 357, 45 Am. Rep. 344, recovery was denied on the ground that there was no duty on the landlord to remove ice and snow from a common passageway. A distinction was recognized between a common passageway artificially constructed, such as halls and stairways, and a common easement, or right of way, over the land of another.

In the case of Gordon v. Cummings, 152 Mass. 513, 25 N. E. 978, 9 L. R. A. 640, 23 Am. St. Rep. 846, a mail carrier was allowed to recover for an injury received in a common passageway.

The law in Massachusetts on the duty the landlord owes to a person using a common passageway over which the landlord has retained control is not altogether in accord with the duty imposed in many of the other states. Without attempting to analyze the distinction, we turn to the application of the law to the facts in this case.

The defendant here was the owner of the flats and kept them for the purpose of profit. In order for him to enjoy this profit, it was necessary that there be means of ingress and egress to the premises; he elected to make one approach for both flats, rather than a separate approach for each. This was an invitation for all who had business or social relations with the tenants of the flats to come and pass over this stairway.

This is quite different from a case where a person has a right of way over the lands of another. In such a case the presumption is that he is bound to repair such a way at his own expense, and the landowner has no right to obstruct the way or to dig pitfalls therein. The distinction between the two cases is that the common approach provided in this case was an inducement to obtain tenants for the defendant who owned it, and the duty in him was to exercise ordinary care to maintain the same in a reasonably safe condition. Sawyer v. McGillicuddy, 81 Me. 318, 17 A. 124, 3 L. R. A. 458, 10 Am. St. Rep. 260.

Tiffany on Landlord and Tenant, vol. 1, p. 628, expresses the general rule thus:

"It frequently happens that the owner of a building demises separate parts thereof to different tenants, access to which parts is by means of a passage, stairway, or other means of approach, which, while intended for the use of the different tenants, is not, in itself, included in the demise to any one of them, and consequently remains in control of the landlord. In such case the landlord in effect in-vites the use of such passages or stairway by the tenants, and by other persons whose relations to the tenants involve their use of these approaches in order to obtain access to the rooms or apartments demised, and he is accordingly regarded as liable, both to the tenant and such other persons, for any injury caused by his failure to exercise reasonable care to keep such parts of the building in proper repair, as is any owner of land or of structures thereon as regards persons whom he expressly or impliedly invites to enter thereon."

In the case of Siggins v. MeGill et al., 72 N. J. Law, 263, 62 A. 411, 412, 3 L. It. A. (N. S.) 316, 111 Am. St. Rep. 6C6, the above principle is applied, and it is stated that the landlord "is bound to see that reasonable care is exercised to have the passageways and stairways reasonably fit and safe for the uses which he has invited others to make of them."

This doctrine is recognized in Nesbit v. Webb, 115 Va. 362, 79 S. E. 330. In Bennett v. Railroad Co., 102 U. S. 577, 580, 26 L. Ed. 235, it is said:

The rule is "founded in justice and necessity, and illustrated in many adjudged cases in the American courts—that the owner or occupant of land who, by invitation, express or implied, induces or leads others to come upon his premises, for any lawful purpose, is liable in damages to such persons—they using due care—for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to him and not to them, and was negligently suffered to exist, without timely notice to the public, or to those who were likely to act upon such invitation."

In the case of Berlin v. Wall, 122 Va. 425, 95 S. E. 394, 396, L. R. A. 1918D, 161, Prentis, J., after citing many of the above authorities, comments on the principle thus:

"All then that the rule...