Inglehardt v. Mueller

156 Wis. 609 | Wis. | 1914

SiebecKBR, J.

Tbe circuit court in awarding judgment dismissing tbe plaintiff’s complaint held tbat tbe defendant, under bis relationship to tbe plaintiff and family resulting from tbe provisions of tbe lease letting to tbe plaintiff tbe apartment adjoining tbe ball of tbe building where tbis radiator was located, owed no duty to bave tbe radiator safely attached to tbe wall of tbe building, because tbe ball constituted a part of tbe leased premises. As shown in. the foregoing statement, tbe lease contained tbe following provision respecting tbe hallways:

“It is distinctly understood tbat tbe front and rear balls, laundry, lawn and back yard are not leased, but tbe hallways may be used by tbe lessee for ingress and egress.”

At tbe trial of tbe case tbe civil court found tbat “said August Mueller did actually undertake to keep tbe hallway in safe, suitable, and proper repair and condition for use by tbe said ,W. A. Inglehardt and members of bis family, tbe public, and tbe other tenants and members of tbeir families in said apartment building.” On appeal tbe circuit court beld that tbe civil court erred in tbis conclusion because “there is no evidence that Mueller expressly agreed to keep tbe hallway in safe, suitable, and proper repair and condition for use. To that extent tbe finding as well as tbe conclusion that Mueller bad agreed and that it was tbe duty of Mueller to keep tbe hallway in such condition are without support.” Tbe circuit court declares that no such agreement can be implied from tbe provisions in tbe lease, and refers to Kuhn v. Sol. Heavenrich Co. 115 Wis. 447, 91 N. W. 994, as applicable to tbis case. That case is one wherein tbe tenant sought to recover damages to bis goods caused by an alleged want of repair, for breach by tbe landlord of an implied covenant to repair. We have no such case before us. ■ Tbe cause of action in tbe instant case is for damages alleged to have been caused by tbe defendant’s negligence in that be failed to perform bis legal duty to have tbe radiator securely and safely attached to tbe wall in tbe ball of tbe building. .The question is, Was it defendant’s legal duty, under the relation of tbe parties, to have tbis radiator securely and safely attached to tbe wall and thus prevent injury to persons lawfully using tbe ball ? Tbe stipulation in tbe lease above quoted clearly indicates that tbe defendant retained possession and control of tbe ball and tbe fixtures therein; for it expressly declares that tbe ball is not leased and that it was only to be used by tbe tenants for ingress and egress. Tbe defendant’s acts and conduct in caring for and controlling tbe ball clearly indicate that be understood tbe ball and its contents were not leased and remained in bis possession. He exercised full control' over it and maintained it for use in connection with tbe prem-, ises leased to tbe various tenants of tbe building. It is also provided in tbe lease that tbe premises leased to tbe plaintiff were to be kept in repair and in a clean and tenantable condition by tbe lessee. It is undisputed that these provisions imposed no duties ou the plaintiff to repair and keep clean and tenantable the hallway. Erom these conditions of the lease it is manifest that the hallway was no part of the premises leased and that the defendant retained possession thereof. In the light of the relationship of the parties as established by the lease, under which the defendant expressly undertook to provide this hall for the tenants occupying the leased portions of the premises for ingress and egress, it is manifest that it was the defendant’s duty to maintain the hall in a reasonably safe condition for such use by his tenants. The facts as found by the trial court show that the defendant failed to perform this duty and that his failure to do so caused the radiator to tip over and fall on the decedent, producing his death. As this court declared in referring to the case of Looney v. McLean, 129 Mass. 33, “the landlord was held liable to his tenant for negligence upon the same principle that he would have been to a stranger for inducing a tenant to use a portion of the building which he undertook to keep in order, knowing that it was unsafe.” True, it is not found that the defendant had actual knowledge that this radiator was insecurely fastened to the wall, but the trial court found on ample evidence that the defendant in the exercise of ordinary care ought to have discovered this danger and ought to have repaired it before the time of this accident, and that he ought to have foreseen that his neglect in this respect might cause an injury to persons lawfully using this hall. Under the facts established and found by the trial court the defendant was guilty of actionable negligence, and the judgment awarded by the trial court is sustained by the record. It follows that the circuit court erred in reversing the judgment of the civil court. For precedents showing upon what grounds the circuit court can reverse a judgment of the civil court of Milwaukee county, see Pabst B. Co. v. Milwaukee L. Co., post, p. 615, 146 N. W. 879, and Hanna v. C., M. & St. P. R. Co., post, p. 626, 146 N. W. 878.

By the Oourt. — Tbe judgment appealed from is reversed, and tbe cause remanded to tbe circuit court witb direction to enter judgment affirming tbe judgment entered by tbe civil court, and for costs.'