139 Mich. 628 | Mich. | 1905
The estate of Thomas Kennedy, deceased, owns the building known as Nos. 247, 249, and 251 Michigan avenue, in the city of Detroit. It is a three-story brick building, with stores underneath, and flats above the stores. It has stairways running up from Michigan avenue for entrances to the two upper stories of the building. There-are three stairways in this building .from the ground floor — one at No. 247, one at No. 249, ■and one at No. 251 Michigan avenue. The building thus contains three stores on the ground floor, and two flats •above each store, or six flats in all, for dwelling purposes. The tenants dwelling in the several flats or apartments go up to their flats from the street by a hallway from Michigan avenue. Those dwelling in the third-story flats use the same stairway's and hallways as the tenants of the •second-story flats. All the stairways are in common hallways used by the tenants. At the rear of the building there are stairways leading up from the yard to the back porches or landings to the several flats. The rear stairways do not continue up to the roof of the building. There is a platform or small porch above the stairway in rear of the third floor. The means of going from this platform to the roof is an iron fire-esc¿pe ladder. The stairway ends at the third floor.' There are back kitchen doors a,t the stairway landings of each floor. This iron fire-escape ladder is fastened to the roof on the inside of -the back porch, with a trapdoor above it. The trapdoor was kept down and closed, but unfastened. The ladder works on hinges or joints, so as to fasten it up to the roof, and is kept up most of the time. The ladder is lowered
The plaintiff, with his family, resided in the flat on the second floor 'of this apartment building, over No. 24? Michigan avenue, from June, 1900, until December 26, 1902. He moved into this apartment before the death of Mr. Thomas Kennedy, as his tenant. Mr. Kennedy died September 13, 1900. Defendants are administrators of his estate, and, as such, in charge of the building. On December 26, 1902, fire occurred in the apartment or flat occupied by the plaintiff and his family, and burned and destroyed all of his household furniture, pictures, and household goods in his two parlors, and two bedrooms and dining room. He had no insurance on his household goods and effects at the time of the fire. This fire resulted from an explosion of coal gas generated from burning soft-coal soot in the inside of the chimney leading from the fire grate in the front parlor of the apartment or flat occupied by plaintiff. This chimney had not been cleaned during the plaintiff’s occupancy of this apartment or flat.
The plaintiff commenced suit in the court below to recover his damages for the loss of his household furniture, etc., resulting from this explosion and fire incident thereto; and the court, at the conclusion of all the testimony offered on the trial of the case, on motion of counsel for defendants, directed the jury to return a verdict in favor of the defendants of no cause for action, and judgment was ac
It does not appear that there was any covenant or agreement on the part of the landlord to keep the premises in repair. Mrs. Gay, who, with her' husband, occupied the flat above that of plaintiff, was called as a witness, and was asked as to a conversation' with a Mr. Sevald, who collected rents for Mr. Kennedy, relative to cleaning the chimney. The question was ruled out. No error was committed in this. A new duty to plaintiff could not have arisen out of any conversation with Mrs. Gay relative to the condition of the flue connecting with her apartments.
The Botsfords had at one time occupied the flat above plaintiff, and plaintiff was asked:
“ Now, do you know what the Botsfords did as to this folding ladder that you speak of — whether or not they allowed anybody to use it ? ”
This was ruled out for the reason that the witness had testified that he never had any occasion to go up there. It is to be noted that Botsford was not a tenant of defendants at the time of the accident, and had not been later than the fall of 1900. And their assumption of authority over this ladder, which was the only means of access to the roof, would not have fixed their rights even while they were occupying the flat. Much less would it have fixed the rights of the Coopers, who succeeded in the occupancy of the tenement. Moreover, it is undoubted that other tenants would be excluded from the use of this upper platform except as they had occasion to go upon the roof for a proper purpose.
This leaves for consideration the question of whether the circuit judge was right in directing a verdict. No case is cited to us, nor have we in our research found a case, which rules this. Recourse must be had to general principles in determining whether, at the common law, and in the absence of any obligation imposed by ordinance (such as will
The plaintiff, while recognizing these settled rules, rests his case upon the rule which appears to have received the sanction of most courts which have dealt with the question, and which appears to us sound in principle: That when the landlord leases separate portions of the same building to different tenants, and reserves control of those parts of the building or premises used in common by all the tenants, he is under an implied obligation to us© reasonable diligence to keep in a safe condition the parts over which he reserves control. The cases in which this rule has been laid down and applied are numerous: Dollard v. Roberts, 130 N. Y. 369 (14 L. R. A. 338); McGinley v. Trust Co., 168 Mo. 357 (56 L. R. A. 334); Lindsey v. Leighton, 150 Mass. 385— being illustrative cases. In these cases, as well as in all to which our attention has been directed, injury resulted from a defective condition of a common stairway or landing, or defective appliances, of which the landlord had control. In each case it appeared that the tenant could not, without becoming a trespasser, make the repairs himself. If we apply this rule to the present case, does it aid plaintiff’s contention ? The use of hallways and stairways was undoubtedly appurtenant to plaintiff’s landed interest. He had the right to use these passageways for ingress and egress. In reason, why might he not have used them also for the purpose of reaching the roof to have the flue to his chimney swept ?
The ordinance referred to reads as follows:
“ It shall be the duty of every owner, agent, or occupant of any building within the limits of the city of Detroit to have the chimneys of such building swept at least once in each year, providing that the same has been used for carrying off of smoke for the consumption of wood or soft coal.”
Without determining whether the ordinance could be invoked by any other than the public, or whether, on the other hand, it is to be construed as a purely penal statute, it is enough for the purposes of this case to say that the very terms of the ordinance indicate that there was no purpose of fixing the duty of keeping the chimneys cleaned, as between the owner and occupant.'
No error is found.
Judgment affirmed.
