BOE, Respondent v. HEALY, Appellant
File No. 10460
Supreme Court of South Dakota
June 12, 1969
168 N.W.2d 710
No probate of the Jacob J. Spitzer estate has been commenced. However, his unknown creditors are named as defendants and were served by publication in this action. His widow and children are all parties thereto. The State inheritance tax obligations have been resolved. Almost a decade has elapsed since the death of decedent. The validity of the purported deed was a special circumstance which necessitated invoking the equity powers of circuit court. A probate of the Jacob J. Spitzer estate in county court would not afford the speedy and adequate remedy required. Doling v. Hyde County, 70 S.D. 339, 17 N.W.2d 693. The trial court should have proceeded to determine the heirs at law of decedent and all adverse claims to the real estate pursuant to
FOSHEIM, Circuit Judge, sitting for HOMEYER, J., disqualified.
BIEGELMEIER, P. J., and ROBERTS, RENTTO and HANSON, JJ., concur.
Robert Patterson, Jr., William L. Dickey, Sioux Falls, for plaintiff and respondent.
HOMEYER, Judge.
The duplex was a two-story frame building with an upstairs apartment, a ground floor apartment, a front and rear porch, basement, back yard and garage. It was so designed that parts of it were used exclusively by occupants of the respective apartments and other areas were used in common by all tenants. At the time of the fire, which occurred on January 2, 1966, plaintiff occupied the upstairs apartment and a group of boys lived in the downstairs apartment. Plaintiff began her tenancy under an oral lease in April, 1965. The defendant acquired the property on July 18, 1964.
The apartment duplex had one chimney which was constructed of brick and mortar and rose from a concrete floor in the basement and extended through the interior of both apartments to above the roof. Each apartment had a fireplace attached to and within the chimney and each apartment also had its own gas heating furnace connected to the same chimney. Other parts of the structure used in common were a front porch and the entrance thereto; a rear porch and steps for access to it; a single stairway to the basement; and the rear door to the building. Each fireplace had a metal plate at its base which when removed would allow ashes and debris to be dropped through a flue to the bottom of the chimney. Plaintiff had never used the fireplace in her apartment.
Each apartment lessee had storage space in the basement. In the southwest corner were two small storerooms, one for each apartment, with separate doors, where storm windows, screens, and awnings were kept for the apartments. The chimney was located within the area where the storm windows, etc., for plain
Plaintiff used as one of her chief witnesses an assistant fire chief who had had many years experience in fighting fires and investigating their causes. He had attended the fire and had made a post fire investigation to determine its cause. He testified that there was a hole and some loose bricks near the base of the chimney in the area where cloth awnings and screens had been stored. He took photographs shortly after the fire which were received in evidence. One of such photographs, Exhibit 2 is shown below.
As a general rule the owner of a building who has leased such building to another without any agreement to repair is not liable to a tenant or to his invitees for injuries sustained by reason of its unsafe condition. Wiggins v. Pay‘s Art Store, 47 S.D. 443, 199 N.W. 122; 52 C.J.S. Landlord and Tenant § 417(3). However, this rule does not apply where the owner reserves control of a portion of the premises for use in common by himself and the tenants, or by different tenants. John Moodie Dry Goods Co. v. Gilruth, 35 S.D. 567, 153 N.W. 383; Simmons v. Pagones, 66 S.D. 296, 282 N.W. 257; West v. Hanley, 73 S.D. 540, 45 N.W.2d 455. The landlord‘s liability has been said to be one sounding in tort and based upon negligence and not as arising from breach of the leasing contract. 52 C.J.S. Landlord and Tenant § 417(6). Exceptions to the general rule are most often found in cases where injuries occur in the use of stairways, hallways, and elevators where either the owner has control or the owner and the tenant have joint control. Cases are collected and discussed in Annot., 25 A.L.R.2d 44 and 26 A.L.R.2d 468.
The controlling rule applicable appears in Restatement of the Law, Torts 2d, § 361: “A possessor of land who leases a part thereof and retains in his control any other part which is necessary to the safe use of the leased part, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor‘s control, if the lessor by the exercise of reasonable care (a) could have discovered the condition and the risk involved, and, (b) could have made the condition safe.”
Under Comment b: “The rule stated in this Section applies to the maintenance of walls, roofs and foundations of an apart
Pertaining to roofs which we believe are closely analogous to chimneys the following text statement appears in 52 C.J.S. Landlord and Tenant § 417(10) with supporting cases cited in the notes: “Inasmuch as one of several tenants of a building has not the right of access or the right of repair the roof, a landlord of such a building is deemed to be in control of that portion of the building, and, while he is not an insurer of the safety of the roof, he is required to exercise reasonable care to keep it in a reasonably safe condition, and is liable to a tenant for injuries or failure to perform that duty.” See Sollars v. Blayney, 31 Ill.App.2d 341, 176 N.E.2d 477.
In our opinion the court correctly determined as a matter of law that the defendant had retained control of the chimney with means of access thereto for use in common by his tenants.
Where the landlord has retained control over a portion of the leased premises for the common use of his tenants, liability depends upon actual or constructive notice of the claimed defect. He may be liable where the defect has “existed for such a period of time as to justify the conclusion that, in the exercise of ordinary care, he should have known of its existence within such time as would have given him a reasonable opportunity to remedy the condition or where by the exercise of reasonable care he could have discovered the defective condition and made it safe. Constructive notice may be implied from the long-continued existence of the defect * * *“. 52 C.J.S. Landlord and Tenant § 417(16); Henry v. First Nat. Bank of Kansas City, 232 Mo.App. 1071, 115 S.W.2d 121; Morris v. King Cole Stores, 132 Conn. 489, 45 A.2d 710. The evidence does not show that either defendant or plaintiff had actual notice of the defect.
Exhibit 2 supra tends to show that the defect was not of recent origin. A reasonable inference is that it existed when defendant acquired the property which was nearly 18 months before the fire and probably long before that time. The assistant fire chief testified that the bricks were loose and mortar was missing; that he shone a light through the opening and a photograph was taken down the chimney from the first floor fireplace which showed a log and other debris at the base of the chimney. Some references in the testimony indicate that the opening may have been used as a clean out for ashes. After the fire a metal door was placed over it.
The defendant testified he inspected the duplex including the basement and the area around the chimney several times before he purchased the property; that he may have spent about an hour in the basement; that during his ownership and before the fire he likewise was in the basement on a number of occasions and was aware that storm windows, screens, and cloth awnings were stored in the storerooms adjacent to the chimney.
We believe it was a question of fact for the jury to determine whether the defendant in the exercise of ordinary care should have discovered the hazardous chimney condition and the risk involved in time to make reasonable repairs for the safety of his tenants. In our opinion a jury could find an inspection such as ordinary care required would have revealed the
In West v. Hanley, supra, this court quoted from Reardon v. Shimelman, 102 Conn. 383, 128 A. 705, 39 A.L.R. 287. In the latter case a landlord was held liable when he permitted ice and snow to accumulate upon a common approach to a tenement house. Liability was predicted upon the fact that he knew, or in the exercise of reasonable supervision and inspection ought to have known, of the dangerous condition and failed to exercise reasonable care to guard against injury because of it.
The court instructed by quoting verbatim sections of the Uniform Building and Fire Prevention Codes of the City of Sioux Falls.1 Defendant objected to such instructions which he said are “a correct statement of the law but not applicable” because the evidence did not show any failure to maintain the duplex in a safe condition and no evidence upon which a jury could find that it was maintained in a hazardous condition resulting in the fire that caused plaintiff‘s damage. For reasons stated supra, we are of the opinion that there was evidence from which the jury could find that defendant was negligent and consequently his objections to said instructions are without merit.
The court also quoted
Judgment affirmed.
BIEGELMEIER, P. J., and HANSON, J., concur.
ROBERTS and RENTTO, JJ., dissent.
ROBERTS, Judge (dissenting).
There was as I view the record an erroneous submission of the case to the jury and an utter failure of proof on the part of the plaintiff requiring a reversal.
At the time of the fire occurring on January 2, 1966, plaintiff and her family occupied the upstairs of a duplex which defendant purchased in August 1964. The two storerooms in the basement were adjacent to the chimney which was a part of a wall between the rooms. The tenants kept storm windows, screens and awnings for their apartments in their respective storerooms. There is evidence that plaintiff‘s husband had on occasions been in the storeroom “to take screens out and storms back” and did not see any defect in the chimney. The defective condition could have been as easily discovered by plaintiff or a member of her family as by defendant.
The realtor who negotiated sale of the duplex to defendant testified: “Q. How many occasions would you say you were in there? A. Approximately fifteen, sixteen times. Q. Were those occasions when you were showing it to prospective buyers? A. Yes, sir. * * * Q. During those occasions when you were in there, did you inspect the property? A. Yes, sir. Q. Do you recall seeing this particular chimney that we have been talking about in this lawsuit? A. Yes, sir. Q. During the times you were down there in that basement and you saw that chimney, did you see any loose mortar or bricks on that chimney? A. No, sir.”
The assistant fire chief who was at the scene of the fire shortly after an alarm was sounded and made an investigation
There is no pretense that defendant had actual knowledge of the defect in the chimney. There is no evidence to indicate that defendant had any notice of the defect and no evidence as to how long the defect had existed. The facts are not inconsistent with the theory that the hole in the chimney was caused when plaintiff‘s husband was taking storm windows in or out of the storeroom.
It is of course elementary that a jury may not be denied the right to draw reasonable inferences. An inference can be drawn only from facts in evidence or from something which is known to be true. It cannot be based on surmise, speculation or conjecture. Gilger v. Montgomery Lumber Co., 73 S.D. 599, 47 N.W.2d 281. A jury cannot draw an inference merely because facts necessary for recovery are beyond the scope of possible evidence. As already observed there is no evidence of how long before the fire the defect in the chimney had existed. The majority concludes that Exhibit No. 2, which is a photograph showing the defective condition after the fire, tends to show that the defect was not of recent origin and that the defective condition had existed for such length of time that defendant should have known of it affording him opportunity to inspect and repair the chimney. There is nothing in the photograph indicative of the length of time that the defect had existed. The asserted inference is contrary to the positive and uncontradicted testimony of the assistant fire chief. The probative effect of the exhibit in question and evidence otherwise in the case are not in my opinion sufficient to warrant the inference.
Defendant excepted to the giving of instructions requested by plaintiff submitting to the jury this theory of the case. The court quoted in his instructions verbatim the provisions of
A companion and succeeding section,
The court also quoted in its instructions and submitted for the consideration of the jury the provisions of Section 104(h) of the Building Code and Section 28.12 of the Fire Prevention Code of the City of Sioux Falls. I would hold that these ordinances requiring the owners of buildings and structures within the city to maintain them in a safe and sanitary condition and to construct and maintain chimneys so as not to create a hazardous condition, if within the municipal authority, are not to be construed as modifying settled common law rules relating to the liability of landlords for injury due to defects in rented premises. Palmigiani v. D‘Argenio, 234 Mass. 434, 125 N.E. 592; Johnson v. Carter, 218 Iowa 587, 255 N.W. 864, 93 A.L.R. 774; Tair v. Rock Inv. Co., 139 Ohio St. 629, 41 N.E.2d 867; Restatement of Torts, § 286, Comment c.
There is attached to the transcript separate assignments predicating errors to the giving of the instructions in question and referring to the pages of the transcript where the alleged errors appear.
RENTTO, J., concurs in dissent.