Wilson v. Dowtin

• Decision Date: 03 May 1939
• Docket Number: 527.
• Citation: 2 S.E.2d 576,215 N.C. 547
• Parties: WILSON v. DOWTIN et al.
• Court: North Carolina Supreme Court

2 S.E.2d 576

215 N.C. 547

WILSON v. DOWTIN et al.

No. 527.

Supreme Court of North Carolina

May 3, 1939

This is a civil action to recover damages for personal injuries sustained when the plaintiff fell into an open unprotected stair well in the storage room of a building owned by the defendant Sherrill and in possession of the defendant Dowtin as lessee.

The defendant Dowtin leased the property from H. C. Sherrill & Co. Thereafter, in July 1936, the defendant Sherrill purchased the property subject to the lease. In the Spring of 1937 the lessee, desiring enlarged premises, requested Sherrill to construct an addition at the back of the building, to be used as a storage room for merchandise. Sherrill engaged a contractor to build the addition as the tenant wished it. At the time the addition was constructed there was a stairway from the outside of the rear of the building leading into the basement. When the addition was constructed the stairway to the basement was retained, with an entrance from the floor of the addition, a part of the stair well being covered over so that the open entrance was about 32 inches by 3 1/2 feet. No railing or other protective device around the opening was constructed.

The office was in the rear of the original building and the storage room addition extended from the rear wall of the original building and could be entered through a door in the rear wall.

On 26 October, 1937, plaintiff, an employee of Armour & Co. at the request of defendant Dowtin, went to the store to adjust a dispute relative to an invoice for merchandise purchased by Dowtin from plaintiff's employer. After talking to the manager of the market, who did the purchasing from Armour & Co., in the rear of the original building he was told to go back to the office and see the bookkeeper about the invoice. The plaintiff entered the door to the storage room. Due to the atmospheric conditions and the small windows the storage room was at the time dark. After he entered the storage room, not seeing the office, he started to call back to the meat cutter for directions. He then saw the lights of the office through the lattice work in the partition between the office and the storage room. He proceeded toward the light and as he undertook to step around some white bags lying on the floor he fell down the basement stair well, receiving certain personal injuries.

During the progress of the trial nonsuit was entered as to the defendant Dowtin pursuant to an agreement or covenant not to sue executed by the plaintiff. At the conclusion of the evidence, on motion of the defendant Sherrill, the Court dismissed the action as of nonsuit and entered judgment accordingly. The plaintiff excepted and appealed.

McDougle & Ervin, of Charlotte, for appellant.

Guthrie, Pierce & Blakeney and Frank H. Kennedy, all of Charlotte, for appellee Sherrill.

BARNHILL Justice.

The plaintiff alleges that the addition to the original building was constructed as a storage room and that it was actually in use as such at the time of his injury. All of the evidence tends to show that from the time of its construction this portion of the building was used for the storage of surplus merchandise carried in stock by Dowtin in connection with the operation of his business. All of the evidence likewise tends to show that there is a direct method of reaching the office from the front of the store without going through the storage room and that the office is easily observable when one enters the store. There is no evidence that the addition was used other than as a storage room or that customers and other persons visiting the store for business purposes were either expressly or impliedly invited to enter the storage room, or customarily went therein. Under these circumstances is the landlord liable in damages for injuries sustained by the plaintiff by reason of the fact that he constructed a stairway in the storage room leading to the basement and left the stair well opening unprotected by any railing or other protective device?

The general and basic rule is that when third parties are injured as the result of any defective condition in leased premises he may have recourse against the lessee, but not against the lessor. Williams v. Strauss, 210 N.C. 200, 185 S.E. 676; Combs v. Paul, 200 N.C. 382, 157 S.E. 12. The liability may, however, be extended to the landlord or owner: (a) When he contracts to repair; (b) where he knowingly demises the premises in a ruinous condition or in a state of nuisance; (c) where he authorizes a wrong. 1 Jaggard Torts, 223, 5 Dillon Mun. Corp. 5 Ed., 3028; 36 C.J. 208; Knight v. Foster, 163 N.C. 329, 79 S.E. 614, 50 L.R.A.,N.S., 286.

There is no evidence that the appealing defendant contracted to keep the premises in repair or that he authorized a wrong. On the contrary, the uncontradicted evidence shows that upon the completion of the building Dowtin, the tenant, agreed to protect the stair opening with shelving and by stacking merchandise...