74 Fla. 411 | Fla. | 1917
Defendant in error brought an action against Robert W. Simms to recover damages for personal injuries sustained by her as she passed along the sidewalk on a public street in Jacksonville, Florida, by the falling of a part of an awning overhanging the sidewalk and attached to a building belonging to Simms but occupied by another person under a lease from Simms. The first count of the declaration alleges in effect that on November 11, 1914, the defendant “was the owner of a certain building and metal awning attached thereto and being a part thereof and extending over and above the public sidewalk in front and to the west side of the said building, situated on the northeast corner of Bay and Hogan Streets, in the City of Jacksonville, county and State aforesaid, that the defendant failed to keep the said awning in the proper repair, as he was bound to do, but negligently and carelessly allowed it, the said awning, to remain broken, in unrepair and in a dangerous condition to persons passing thereunder, that on the day aforesaid plaintiff was a pedestrian walking along the said public sidewalk, in front of said building, as she had a right to do, and under the said awning and a piece of the said awning fell upon the said plaintiff with great force and violence whereby the plaintiff was” injured as alleged.
The second count alleges that Lie defendant was the owner of the building “occupied at the present time by Levy’s store,” and also of a “certain metal awning
A plea of not guilty and two special pleas were filed, the special pleas being stricken on motion. At the trial the defendant offered the following pleas: “That prior to the happening of the alleged accident he had leased the said building described in the declaration, owned by him and located at, the northeast corner of Bay and Hogan Streets in the City of Jacksonville, Duval County, Florida, to one B. S. Levy, and by the terms of said leases the said B. S. Levy was to make every and all repairs of every kind and character to said building; that pursuant to the leases to the said B. S. Levy, and before the happening of the alleged accident which is the subject of this suit, the said B. S. Levy had gone into possession and taken control of said building, and that at the time .of the said B. S. Levy going into possession of said building the said building and every part theerof, and the part complained of in plaintiff’s declaration, were in good repaid and condition; and that at the time of the happening of said alleged accident the said B. S. Levy was in actual and exclusive possession, occupancy and control of said building, under the terms of said leases, and had been in possession and control of said building for, to-wit, more than two years prior thereto.
The court refused to permit the pleas to be filed, to which the defendant excepted. Verdict and judgment were rendered for the plaintiff, and the defendant took writ of error.
The trial judge certifies that the “bill of exceptions contains only so much- and such parts of the evidence as is necessary to enable the appellate court to properly review the rulings of the trial court mentioned in the assignment of errors -in the above case.”
If under the -circumstances stated in the quoted additional special pleas, the defendant is not liable, there was harmful error in refusing to permit the pleas to be filed at the trial. The court had on the ground that it “could not avail the defendant” stricken a special plea averring - that the defendant was not-in possession or control of the building, but that the same had been leased
It is obvious from the several rulings made that the trial court held the defendant to be liable even though the building was in the possession, custody and control of another under a lease which required the lessee to make necessary repairs to the building during the period of the lease, the lessor having under the lease no right to possession or control of the building.
In King v. Cooney-Eckstein Co., 66 Fla. 246, 63 South. Rep. 659, where the action was against the lessees of a wharf to recover for personal injuries sustained by reason of a defect in the wharf, it is said “both the lessor and the lessee may be liable under certain circumstances and prima fade the liability rests primarily upon the one in actual occupancy and control of the premises.”
A tenant or occupant of the premises having the entire control thereof is, so far as third persons are concerned, the owner. He is, therefore, usually deemed to be prima fade liable for all injuries to third persons occasioned by the condition of the demised premises. 16 Ruling Case Law 1063, 1095; Nelson v. Liverpool Brewery Co., 2 L. R. C. P. Div. 311.
A lessor landlord may be liable to third persons for injuries caused by defects in leased premises during the term of the lease, when the defect in' or condition of the premises at the time of the lease was a violation of law or was in the nature of a nuisance existing or incipient because of negligent construction or otherwise, or' when
The proffered pleas aver that prior to the alleged injury the-defendant had leased the building to B. S. Levy; that by the terms of the leases the lessee was to make every
These pleas tendered an issue that if sustained would have been a defense to the action, and permission to file them should have been allowed.
The judgment is reversed and a new trial awarded.