Wilson v. Woodruff

• Citation: 235 P. 368,65 Utah 118
• Decision Date: 23 March 1925
• Docket Number: 4156
• Parties: WILSON v. WOODRUFF et al

235 P. 368

65 Utah 118

WILSON v. WOODRUFF et al

No. 4156

Supreme Court of Utah

March 23, 1925

Appeal from District Court, Third District, Salt Lake County; L. B Wight, Judge.

Action by Lee Wilson against Florence K. Woodruff and another. From judgment dismissing action, plaintiff appeals.

AFFIRMED.

Willard Hanson, A. H. Hougaard, and Hutchinson & Hutchinson, all of Salt Lake City, for appellant.

Ray &amp Rawlins and Stephens, Brayton & Bagley, all of Salt Lake City, for respondents.

CHERRY J. GIDEON, C. J., FRICK, J., and WOOLLEY, District Judge, concur. THURMAN, J., did not participate. Term of office of Hon. A. J. Weber, who was Chief Justice, expired before disposal of case.

OPINION

CHERRY, J.

This is an action to recover damages for injuries caused by the collapsing of part of a two-story building situated in Salt Lake City, owned by defendants, the upper floor and rooms of which were at the time rented to and occupied by the plaintiff. In the accident the plaintiff sustained personal injuries himself, his wife was killed, and certain personal property owned by him and situated in the leased premises was destroyed or damaged. The damages sustained were alleged in separate counts, and the liability of defendants therefor was based upon the alleged negligence of the defendants. The trial was commenced before the court and a jury, but at the conclusion of the plaintiff's case a nonsuit was granted and the action was dismissed, from which order and judgment the plaintiff appealed.

The question for decision is whether the district court erred in granting a nonsuit.

The facts pertinent to this inquiry, disclosed by the evidence, are in substance as follows:

The defendants were the owners of a two-story brick and adobe building situated in the business section of Salt Lake City. The building was 40 years old. The ground floor was divided into two storerooms, and the upper floor was divided into eight rooms adapted for living quarters. There was evidence that the east wall of the building was defectively constructed, in that it had not been sufficiently anchored and braced. The defendants, however, became the owners of the property long after the building had been constructed, and had no knowledge of the supposed defect. The roof of the building was so arranged that the water falling upon the easterly half of the roof was diverted to the southeast corner and there discharged through a down spout to the ground. The down spout had been out of repair and water had leaked out of it for a considerable time, and finally it had fallen off so that at the time the premises were leased to plaintiff the situation was such that water from the east half of the roof was discharged at the southeast corner of the roof and portions thereof fell against the walls of the building at the corner, with the result that the wall materials were gradually decomposed and weakened.

On January 23, 1923, the rooms of the upper or second floor were leased to the plaintiff for the sum of $ 50 per month. The rooms directly over the east wall were thereafter occupied by the plaintiff and his wife for living quarters. The storeroom on the west side of the ground floor was rented to a separate tenant, and the storeroom on the east side was vacant. On April 18, 1923, while the plaintiff and his wife were eating lunch at midday in one of the leased rooms and without any known immediate cause therefor, the east wall gave way and the east portion of the building, including the room occupied by the plaintiff and his wife, collapsed and fell to the ground, resulting in the injuries and damages sued for. The foundation of the building remained intact.

Previous to the letting of the premises to plaintiff, a former tenant had notified defendants' agent that the down spout had fallen or broken off, and the plaintiff testified that he knew there was no down spout from the roof when he took possession of the leased premises. The fact that the water falling on the east portion of the roof, under the circumstances, would necessarily drain along and on the corner of the walls of the building, was open and obvious, and was in fact known to the plaintiff when he leased the premises.

The case for the plaintiff depends upon whether or not the defendants were guilty of legal negligence in thus permitting the wall of the building to weaken and fall.

The general proposition is well settled that in the absence of warranty, deceit, or fraud on the part of the landlord, the lessee takes the risk of the quality of the premises, and cannot make the landlord answerable for any injuries sustained by him during his occupancy by reason of the defective condition of the premises or their family construction. Doyle v. Union Pac. Ry. Co., 147 U.S. 413, 13 S.Ct. 333, 37 L.Ed. 223; Reams v. Taylor, 31 Utah 288, 87 P. 1089, 120 Am. St. Rep. 930; Walsh v. Schmidt, 206 Mass. 405, 92 N.E. 496, 34 L.R.A. (N. S.) 798, and annotation following.

It is also established that in cases where the landlord lets out portion of his property to separate tenants, and retains in his own possession and control passageways, stairways, and the like for the common use of all tenants, the landlord is under the responsibility of a general owner of real estate who holds out a general invitation to others to enter upon and use his property and is bound to see that reasonable care is exercised to have the portions of his property thus retained by him reasonably fir and safe for the uses which he has invited others to make of them. Siggins v McGill, 72 N.J.L....