80 W. Va. 200 | W. Va. | 1917
The defendant is the owner of a two-story brick building in the city of Beckley. The plaintiff in the fall of 1912 rented a storeroom in this building, and this lease was extended from year to year, the storeroom being occupied by the plaintiff as a tailor shop at the time of the occurrences complained of in this suit. The second floor of the building was constructed for offices,’ one of which was occupied by the defendant. The
On another occasion, in the fall or summer of 1915, the plaintiff’s storeroom was again flooded and his goods injured. This time the opening in the fire wall had become stopped up from straw washing into it. This straw was placed on the roof for the purpose of preventing injury thereto from bricks being used to repair the fire wall, which repairs defendant was having made. The opening into the down-spout was stopped up on this occasion in such a way that the water came through the hole in the wall, but instead of going into the spout ran down the side of the building and behind the cornice and into plaintiff’s storeroom. Plain
The defendant insists that no recovery can be had for the reason that there is no express covenant in this lease of fitness of the storeroom for any purpose, and the law does not imply such a covenant, and further that there is no covenant upon the part of the lessor, either express or implied, to make repairs. It is quite true that in the absence of fraud or concealment on the part of the lessor there is no implied covenant in a lease that the leased premises are tenantable or fit for the purpose for which the tenant intends to use them. Underhill on Landlord and Tenant, §477; 24 Cyc. 1047-1048; Kline v. McLain, 33 W. Va. 32; Clifton v. Montague, 40 W. Va. 207; Windon v. Stewart, 43 W. Va. 711; Arbenz v. Exley, 52 W. Va. 476. Neither is there any obligation upon the landlord to make repairs to the leased premises during the continuance of the lease in the absence of an agreement to do so. Taylor on Landlord and Tenant, §327; Underhill on Landlord & Tenant, §96; Windon v. Stewart, 43 W. Va. 711; Kline v. McLain, 33 W. Va. 32; Arbenz v. Exley, 52 W. Va. 476.
But this doctrine has no application to the case presented here. There is no question of fitness of the leased premises nor is there any claim for damages asserted because of a failure to make repairs upon the leased premises. The contention of the plaintiff is that the defendant has been negligent in the use and care of that part of the building remaining in his control. The tenant of a part of a building, has a
In Underhill on Landlord and Tenant, §485, it is said: “It is a general’rule that the landlord must keep in reasonable repair those portions of the demised premises which he retains in his possession and control. His obligation in this respect is not based on contract, but arises from the responsibility of an owner of real estate to persons who, by his invitation express or implied, are permitted to enter upon his property.”
The same author, speaking of the obligation of the landlord in regard to beeping the roof in repair, at §489, says: “The landlord who retains the supervision and control of the roof of premises which are let out to several tenants in separate apartments is responsible for its condition and liable if he shall prove negligent. As to the liability of the landlord of a tenement house as regards the condition of the roof, it has been held he is bound to exercise reasonable
In 24 Cyc. at page 1115, it is said: “The rule relieving the landlord, in the absence of a special agreement, from making ordinary repairs during the term, does not release him from liability in cases of injuries resulting from his failure to keep in proper repair such portions of a house as are not leased to any particular tenant, but are retained in the control of the landlord for the common use of several tenants. ’ ’
So in the case of Mercantile Co. v. Thurmond, 68 W. Va. at p. 536, Judge Williams speaking for the court says: “The general rule of law is that, in the absence of express agreement, it is the duty of the tenant to make repairs of the leased premises. This rule is based on the principle that during the continuance of the lease the landlord has no right of entry. But the present case falls under a well recognized exception to this general rule. It is this. Where premises are leased in part' to two or more tenants, with the right of each to use a certain part in common, the law obliges the landlord to keep such part in repair.”
The case of Hargrove v. Hartopp, 1 L. R. 472 (1905) is very similar to the ease here. The suit was by a tenant of a part of a building to recover damages for injury to his property resulting from water coming through the roof because of a gutter becoming stopped up, Lord Alverstone, O. J., aptly states the principles controlling at page 477 as follows: “It may be that a covenant by the landlord to repair is not to be implied in respect of those portions of the premises which are actually demised to the tenant. It is enough to say that that is not this case. Here the gutter
This doctrine is supported by sound reason, and has been applied by the courts with practical unanimity. Toole v. Beckett, 67 Me. 544; Payne v. Irvin, 144 Ill. 482; Kneeland v. Beare, 11 N. D. 233; Alperin v. Earle, 55 Hun. 211; Moodie Dry Goods Co. v. Gilrufh, 35 S. D. 567; Hysore v. Quigley, 9 Houston (Del.) 348; Brown v. Garson, 42 New Brunswick 354; Schwarts v. Monday, 97 N. Y. Sup. 978; Kecoughtan Lodge v. Steiner, 106 Va. 589; Bancroft v. Godwin, 41 Wash. 253; Adams Grain & Pro. Co. v. C. & O. Ry. Co., 88 S. E. 171 (Va.); Miller v. Hancock, 2 Q. B. 177 (1893).
The defendant insists that the evidence does not show negligence upon his part. It appears that before the flooding of the plaintiff’s store, at the time at which the first injury was inflicted for which damages are claimed, the defendant had been notified that the roof was leaking. It does not appear what, if anything, was done to remedy this. It also appears that at one of the times of which complaint is made the pipe was stopped up from straw, which had been left upon the roof by defendant’s workmen, being washed into it. We cannot say that a jury could not properly find from these facts that the defendant was negligent, and if he was, and injury resulted therefrom to the plaintiff, he is entitled to recover the same in this suit. As the evidence appears in the record it was sufficient to go to the jury upon the issue of whether or not the defendant was negligent.
We are therefore of opinion to reverse the judgment complained of, set aside the verdict of the jury, and remand the cause for a new trial.
Beversed, verdict set aside, remanded.