Opinion
No. 31091.
September 24, 1934.
1. LANDLORD AND TENANT.
Lessor of building does not warrant building to be in good condition for lessee's purposes, and is not under duty to make repairs so as to keep building in suitable condition for lessee, unless such obligation is specially undertaken by contract.
2. LANDLORD AND TENANT.
Lessor of store building held not liable for damage to lessee's merchandise from overflow of water from part of upper floor retained by lessor occasioned by giving way of faucet and freezing of pipe, in absence of contract or warranty protecting lessee against such loss.
APPEAL from Circuit Court of Pike County.
Thomas Mitchell, of Magnolia, for appellant.
The doctrine which obtains in this case and in this class of cases is correctly stated in 3 Farnham on Water and Water Rights, at section 966, as follows: "If the injury is caused by leakage from pipes in other portions of the building than that occupied by the injured tenant, the question of the landlord's liability will depend upon the connection with the injury. He is liable for all injuries resulting from his own negligence and an exemption clause in the lease will not include such injury. So a landlord is not relieved from liability for injury to tenants of a lower floor by the freezing and bursting of an automatic fire-extinguisher in the portion of the building retained by him, by the fact that he has employed an independent contractor to keep the building heated. The lessor is also liable for injuries caused by the negligent acts of his tenants."
A lessor in control of an upper floor of the premises is liable to an occupant of a lower floor for any damage proximately due to defective plumbing upon the upper floor.
Lebensberger v. Scofield, C.C.A., 155 Fed. 85; Marshall v. Cohen, 44 Ga. 489; Priest v. Nichols, 116 Mass. 401; Sherdina v. Forsee, 106 Me. 499; Jones v. Freidenburg, 66 Ga. 505; Ingersen v. Rankin, 47 New Jersey, 18.
It is a familiar doctrine of law that "the landlord, when in control of an upper story of a building, is liable to a tenant of a lower floor for injuries occasioned by water escaping from fixtures which negligently have been allowed to become out of repair.
Hargraves v. Harton, 53 A. 807; Pittsburg Shoe Co. v. Pittsburg Cotton Co., 71 N.H. 522, 53 A. 807.
A landlord having control of the roof is generally liable to the tenant below for damages from defective condition of the same, or negligently leaving the conduct pipe so as to flood the premises below, or exposing goods of tenant by uncovering roof.
McVie v. McNaughton, 23 N.Y. Weekly Digest, 89; Worthington v. Barker, 11 Del. 545; Rauth v. Deavenport, 45 N.Y.S.R. 926, 60 Hun. (N.Y.) 70; Sulznacher v. Dickie, 6 Del. 469; Center v. Davis, 39 Ga. 210; Toole v. Becket, 67 Me. 55, 24 Am. Rep. 54; Clickauf v. Maurer, 75 Ill. 288, 20 Am. Rep. 238; Bissell v. Lloyd, 100 Ill. 214; Guthman v. Castleberry, 49 Ga. 272.
A landlord occupying the upper floor is liable to tenant below for injury to tenant below from leakage from his room.
Jackson v. Eddy, 12 Mo. 209; Priest v. Nichols, 116 Mass. 401; Bernauer v. Hartman, 33 Ill. 491; Pike v. Brighten, 71 Cal. 159, 60 Am. Rep. 577; Freidberger v. Jones, 63 Ga. 612.
A landlord allowing sewerage to flow from his adjoining lot into the cellar of his tenant is liable to the tenant for damages.
Smith v. Flaxon, 156 Mass. 589.
And if the water pipes are controlled by the landlord, are out of order, and the tenant is injured thereby, the landlord is liable.
Vann v. Rouse, 94 N.Y. 401.
A landlord is bound to keep in condition pipes used in common by several tenants.
Fitch v. Armour, 27 Jones S. 413; Ingersen v. Rankin, 54 Am. Rep. 100; Kecoughton Lodge v. Steiner, 106 Va. 589; Krey v. Schlusaner, 16 N.Y. Supp. 695; Elliott v. Allen, 87 Am. Dec. 653; Philips v. Library Co. of Burlington, 55 N.J.L. 307; Curtis v. Kiley, 159 Mass. 123; Nilford v. Holbrook, 85 Am. Dec. 735; Readman v. Conway, 126 Mass. 374; Leydecker v. Brintnall, 158 Mass. 292; Schilling v. Abernathy, 112 Pa. 437.
Price Price, of Magnolia, and Price, Cassidy McLain, of McComb, for appellee.
Plaintiff could, by no stretch of imagination, be charged with negligence if the water faucet had been left open and allowed to run into the lavatory and on the floor, for the reason that he had had no notice of the defective condition of the plumbing fixtures, if any, and no notice that faucet was left open.
Jones v. Millsaps, 71 Miss. 10, 14 So. 440; 114 So. 830; 118 So. 801; 139 So. 624; Plaza Amusement Co. v. Rothburg, 131 So. 350; Rich v. Swalm, 137 So. 325; 16 R.C.L. 1034-36 and 1042-44.
Norwood, plaintiff in the court below, brought suit in the county court against the appellant, Causey, for one hundred ninety-six dollars and fifteen cents for the rent of a building leased by Norwood to Causey, the contract of lease reading as follows:
"This contract and agreement made and entered into on this the 17th day of December, A.D., 1929, by and between Joseph E. Norwood of Magnolia, Miss., party of the first part, and E.A. Causey of Magnolia, Miss., party of the second part, witnesseth:
"That the party of the first part is the owner of the two story brick store building on the hereinafter described property, and the party of the second part is desirous of leasing the entire first floor of said store building and the rear half of the second story as now partitioned;
"Now therefore, in consideration of the premises and of the payment by the party of the second part to the party of the first part, of the sum of ninety ($90) dollars per month payable on the first day of each month hereafter beginning on January 1, 1930, and extending for a period of three years, I hereby lease and let to E.A. Causey the first floor and the rear half of the second floor, as now partitioned, of the two-story brick building situated on the following described property in the town of Magnolia, Pike county, Mississippi, to-wit; Fractional part of the S 1/2 of Lot 5, fronting twenty-five feet on Railroad avenue, and fractional part of N 1/2 of Lot 6, fronting twenty-three and one-half feet on Railroad avenue in Square 14, situated in Magnolia, Miss.
"It is understood and agreed between the parties hereto that this lease contract is for a period of three (3) years, and that the party of the second part obligates himself to pay for the lease of said property the sum of ninety ($90) dollars per month as rental, said payments to be made monthly and on the 31st day of each and every month during the continuance of this contract.
"It is understood and agreed further between the parties that the party of the second part shall not sub-let or sub-lease the premises or any part thereof, except to a tenant who shall be acceptable to the party of the first part and his written consent given thereto.
"It is further understood and agreed that the party of the first part replace glass now broken in the front entrance to said store building, and will repaint the front of said building down stairs; and that the lessee, party of the second part, may rearrange the inside of said building to his taste, but in such rearrangement he shall see to it that the woodwork and the present counters and shelving in said store building are not damaged, and that the party of the second part, on the termination of this contract and agreement, will deliver the said property to the party of the first part in the same or as good condition as when received by him, ordinary wear and tear excepted.
"It is agreed that the party of the second part will pay for all light and water he may use in connection with said building during the term of this contract.
"This contract executed in duplicate on this the ____ day of December, A.D. 1929."
The defendant pleaded the general issue, and also certain special pleas, the first plea of payment, and the second a plea alleging that, at the time of the execution of the contract heretofore set forth, the plaintiff had put, or caused to be put, a water system in the front part of the upper story of said building, the lower story of which was leased to Causey, and that in the month of April or May, 1932, said water system became defective and overflowed, and the overflow water ran into the first floor of the building damaging the goods and wares of the said Causey in the amount of thirteen dollars and eighty-three cents, which he deducted, in paying the rent to said plaintiff, from the amount thereof; and further alleged that thereafter the plaintiff permitted said water system to again become defective and overflow the first floor again by which Causey was damaged in the amount of one hundred ninety-three dollars.
The defendant did not allege any contract, in any of his pleas, on the part of Norwood warranting the building to be in a safe condition, or any obligation on his part, by contract, to indemnify the defendant for any loss that might be occasioned by overflow water from the upper story of the building. In other words, there was no contract shown by proof, or alleged by pleas, which obligated the plaintiff to pay the damage occasioned by overflow of water, or any warranty by contract, or agreement, that the building leased by the defendant would be protected, in any way, against such loss.
It appeared in the evidence that the first damage from overflow was occasioned by the giving way of a faucet in the upper story due to pressure put upon it by the city in extinguishing fires; and that the second damage from overflow was occasioned by the bursting of a water pipe supplying the upper story, due to a freeze on or about December 19, 1932, said pipe being exposed to the weather.
The county court decided for the plaintiff, refusing to allow the defendant, Causey, damages claimed by him, or any damage for either of the overflows from the upper story of the building. Appeal was taken to the circuit court, and the judgment of the county court was affirmed, from which judgment of the circuit court this appeal is prosecuted.
This state is committed to the doctrine that the lessor of a building does not warrant the building to be in a good condition for the purposes of the lessee, and that the lessor is not under the duty to make repairs to the building so as to keep it in a suitable condition for the lessee, unless such obligation is specially undertaken by the contract. Jones v. Millsaps, 71 Miss. 10, 14 So. 440, 23 L.R.A. 155. The holding in that case was adhered to in the case of Plaza Amusement Co. v. Rothenberg, 159 Miss. 800, 131 So. 350.
Applying this doctrine to the case at bar on the facts shown in the record, we think there was failure on the part of the defendant to make out any liability against the plaintiff for said damages resulting from overflow, and the judgment of the court below will be affirmed.
Affirmed.