Borman v. United Merchants Realty & Improvement Co.

264 Pa. 156 | Pa. | 1919

Opinion by

Me. Justice Stewart,

The defendant company is the lessee of a three-storied building in the City of Scranton devoted to business purposes, the lower floor of the building is used for store rooms, of which there are several, the upper floors being used for offices of various kinds; all the rooms are sublet by the defendant company to the several tenants occupying them. A way of access to the upper floors is provided by an entrance from the front of the building, between two of the storerooms, leading into an open area or space where there is a stairway leading up. The tenant of one of these storerooms obtained from the defendant company, his lessor, permission to construct a stairway leading from this open area to the cellar under his store for greater convenience, closing it however against general use by a door in the area thus shutting it off. At about six o’clock on the evening of February 12, 1916, the plaintiff having occasion to visit a dentist whose office was on the second floor of this building entered the open area from which the stairway led to the upper floor. In attempting to find the stairway leading up he was misled by a light above the transom of the door leading into the cellarway, and supposing that to be the doorway to the stairway leading up, he entered it with the result that he was precipitated to the cellar and thereby sustained the injuries of which he complains and for which he seeks to recover damages in his action against the defendant company. The defendant’s affidavit of defense was in effect a demurrer to plaintiff’s statement of the cause of tbe action. It was sustained by tbe learned court and judgment accordingly was entered for the defendant. The appeal is from the judgment so entered.

Any one of the several reasons given by the learned judge who heard the case in his opinion filed would in itself be a sufficient vindication of his conclusion. Take the first: admitting the trespass, Avhere arises liability on part of the defendant as landlord therefor? The court in discussing this feature of the case uses this language: “The tenant no doubt could lawfully have a private entrance from the street to his cellar and there is nothing inherent in either its location or design that would stamp it as a nuisance per se. Hence it is not apparent how the landlord could incur any responsibility by mere force and effect of his consent to the addition of such improvement. It is clear enough that the liability, if any, must be traced to the breach of some resulting duty with respect to the safeguarding the public who might thereafter have occasion to visit the building. Prima facie this would devolve upon the tenant as he was at all times in possession, and there is nothing in the pleadings to overcome the presumption that his possession was exclusive......It — the statement of cause of action— falls short, of showing any right, of control in the landlord in respect to the maintenance of a danger sign, notice to keep out or the like, even if it be conceded that such warning was called for.” This is a correct view of the law, and to it this may be added, that the statement falls short equally of showing circumstances from which the law would infer any duty on the part of the landlord to maintain a danger sign, notice to keep out or the like.

As to the other averment, that the said doorway leading into the cellar was so placed with reference to the stores, and entrance on the Spruce street side of the building, that it would clearly mislead an ordinary person into the belief that it was a doorway leading to the upstairs entrance to the building, the court well says, “This conclusion may be well founded in the mind of the plaintiff, but having regard to the pleadings themselves, and these alone, one would be at a loss to point out the specific reasons why the conditions were calculated to mislead. Where was the entrance to the upstairs with reference to that connected with the cellar? Was that also closed by a door, and if so, how did they resemble each other? Of what description is the door which lured the plaintiff to his undoing?” This again is a complete answer to the objection urged and sufficient in itself to justify the action of the court.

It is complained that the court decided adversely to the main facts pleaded, and then disposed of the case upon the facts thus found and not upon the facts pleaded. This is an entire misapprehension. The complaint is directed against the remark by the court in its reference to the entrance from the street to the cellar where he says “there is nothing inherent in its location or design that would stamp it as a nuisance per se.” There is no averment anywhere in the statement that the entrance was improperly located, designed or constructed, and not a single fact was averred in connection therewith that would have warranted a finding of the jury that the entrance or cellarway was wanting in either respect. The trouble was, not that the court found the fact, but that the pleadings were wholly silent as to the facts upon which the counsel based their conclusion that the entrance was a nuisance per se.

The appellant had ample opportunity to apply for leave to file an amended statement. This he failed to do, and now asks for a reversal of the judgment so that he may have further opportunity to this end. It is enough to say that this affords no sufficient ground for reversal, and we may add, that in the view we take of the law of the case, it would avail the appellant nothing were it to be granted;

The judgment is affirmed.