277 Pa. 560 | Pa. | 1923
Opinion by
Defendant, as trustee for the Girard Estate, owned piers Nos. 1 and 2 North Wharves, Philadelphia, which had, for many years, been leased to the Clyde Steamship Company. In 1904 the city and the steamship company jointly constructed a bulkhead on piling between the two piers, which the company continued to occupy until September 30, 1919, at which time its tenancy ceased and the premises were surrendered to defendant. On November 5, 1919, the bulkhead in question, through William H. Vivian, acting as agent for the Girard Estate, was leased to the Trenton & Philadelphia Motor Freight Company, a corporation engaged in transporting local freight between the Cities of Philadelphia and Trenton for “storage of freight” and no other purpose “without the consent in writing of the said lessor.” Possession was first taken under a verbal agreement, but, on November 24, 1919, a written lease was signed by the tenant and forwarded to defendant for execution. It was approved by
The law governing the liability of an owner for defects in premises in possession of a tenant is well established and the only difficulty here is in applying it to the particular facts of this case. As between landlord and tenant, in absence of express covenants in the lease, the rule is that no implied covenant exists on the part of the landlord either to put the premises in repair or to keep
On the other hand, the rule is equally well settled that so far as third persons are concerned the landlord is liable for defects existing at the time of executing the lease; but where the premises become defective while in the occupancy and control of a tenant and such defects result in injury complained of, the tenant alone is liable. The landlord, however, cannot relieve himself from liability to others by placing a tenant in possession of property. If a defect arises while t'he premises are in possesion of a tenant and continues without repair until the expiration of the lease, it is then the duty of the landlord to repair and if he fails to do so he remains liable, though he re-leases the premises to another tenant: McLaughlin v. Kelly, 230 Pa. 251, 256, 258, and cases cited; see also Cunningham v. Rogers, 225 Pa. 132; Folkman v. Lauer, 244 Pa. 605.
In the present case the exact status of plaintiffs with respect to the premises is not clear. They deny they were sub-tenants and contend the transaction with respect to the storage of the fish constituted merely a bailment for hire. A lease contemplates the passing of the right to possess a particular piece of property to the exclusion of others: 24 Cyc. 878; 25 Cyc. 640. The testimony is that plaintiffs applied for “space for storing mackerel.” The barrels were stored under a verbal agreement that plaintiffs should pay “either twelve cents per barrel or for the space occupied” as should be subsequently agreed upon. The bulkhead collapsed before a final agreement was entered into. If a designated space was to be set aside for plaintiffs’ exclusive use they became lessees. If, on the other hand, they were to store fish in common with others at a price per barrel, without definite space being allotted, they were merely licensees or bailees. If lessees, they had express notice
If, on the contrary, the arrangement between plaintiffs and lessee was one of mere license or bailment, as contended by plaintiffs, defendant owed to plaintiffs the duty of keeping the premises in a reasonably safe condition for use for the purpose intended and that obligation could not be avoided by placing the premises in the hands of a tenant. Defendant, however, contends the premises were not used for the purposes contemplated by the lease, but, on the contrary, were used for general storage purposes, notwithstanding the provision that they were leased only for the purpose of storage of freight. If this provision was violated and such violation caused the injury to plaintiffs’ goods, defendant would not be liable for such injury, because the proximate cause of the loss would have been, not the defective condition of the premises, but the use of the premises in violation of the terms of the lease.
Storage of freight cannot, under the circumstances, be construed as a matter of law to mean storage of merchandise in general, otherwise no necessity existed for limiting the use by the word “freight.” A reasonable construction of the words means freight in course of transportation and temporarily stored in the ordinary course of transit in connection with the business carried on by the lessee.
On reargument, counsel for plaintiffs admitted the mackerel in question was placed on the bulkhead for storage without having first obtained the consent in writing of defendant. This constituted a use of the premises in violation of the terms of the lease and as
The twelfth assignment of error is sustained and the judgment' of the court below is reversed and judgment entered for. defendant non obstante veredicto.