12 A.2d 7 | Pa. | 1940
This action was brought by Luther Bouy, claiming damages for the death of his wife, who was killed on December 19, 1936, by reason of the collapse of a building at 519 South Fifteenth Street, Philadelphia. Mrs. Bouy was at the time visiting a relative, who rented a second story room in the house from Abraham Samson, the tenant of the premises. Plaintiff seeks to hold defendant, Fidelity-Philadelphia Trust Company, liable as lessor and owner of the building. After hearing the evidence offered, the trial judge gave binding instructions for defendant. The learned court en banc awarded a new trial upon the theory that since defendant rented the house to Samson in a ruinous condition, it was responsible for damages to the guests of sub-tenants therein for renting a building in a condition amounting to a nuisance. From the order granting a new trial defendant took this appeal.
Samson rented the building from defendant on August 26, 1936, at twenty dollars a month for use as a rooming house. It was a small building, twenty feet front and three stories high. The testimony shows that when rented the house was in an obviously ruinous condition and actually known by the tenant to be such. He made some superficial repairs, like papering and painting, *7 placed boards against a wall that bulged, and then sublet the rooms.
In the lease, Samson expressly agreed to take the premises "as is," make improvements to the interior and keep them in good order and repair. He acquired the entire possession and control of the premises, defendant merely reserving the right to enter to inspect and repair, if it so chose.
It cannot be denied that Mrs. Bouy was on the premises as the guest of a sub-tenant, in fact so much is admitted; it therefore follows, under the facts of this case and our decisions, that she or her representative is barred from any recovery against the landlord. The case is ruled by the principles set forth in Harris v. Lewistown Trust Company,
It is contended, however, that the letting of the building in such a dilapidated state amounts to a nuisance and that plaintiff's wife should be regarded as a third person or stranger to the premises. The attempt is made to liken her to one who is injured while lawfully using the sidewalk as a member of the public and who is permitted recovery against the landlord out of possession: Kirchner v. Smith,
The facts of this case bring it squarely within the rule that: ". . . since members of the family, employees, guests and other invitees of the tenant are brought on the premises through the tenant's initiative, they must look to him and not to the owner, who is out of possession, for their protection."Harris v. Lewistown Trust *9 Company, supra, 150, 151. Here the rights of both the sub-tenant and her guest are derivative from the tenant; and since he would have been unable to recover if he had been injured, they are likewise barred.
From what we have said it is obvious that plaintiff failed to prove a valid cause of action against the landlord; for which reason the giving of binding instructions for defendant was imperative.
The order of the court below is reversed, the verdict for defendant is reinstated, and judgment is here entered upon the verdict.
Mr. Justice MAXEY dissents.