Brunswick-Balke-Collender Co. v. Rees

Taylor, J. We will first consider the appeal from the order sustaining the demurrer of the defendants Rees. As — 449 — to them, the facts are these: They owned the whole building No. 144. They let the two lower floors of the building to the plaintiff, and had previously let the upper floors to the defendants lindemann, for the purposes set out in the complaint. Having let the lower floors to the plaintiff, the law imposed a duty upon the lessors that they should not so use the upper part of the building as to endanger the lives of the plaintiffs, or their property, while in the lower part of said building, as their tenants. This would seem an almost self-evident proposition, had the landlords themselves been in the actual occupation of said upper floors. But it is said that they were not in such actual possession, and the plaintiffs knew the fact that such floors were in possession of the tenants of said landlords when they took their lease, and consequently the landlords owed no duty to the plaintiffs during the tenancy of the upper tenants to protect them against the acts of such tenants, which might endanger the safety of the lives or property of the plaintiffs as tenants of the lower floors. This contention is sound to a certain extent, but only to a certain extent. I am, however, of the opinion that when the landlords let the lower rooms to the plaintiffs they impliedly agreed that they had not authorized the tenants occupying the upper floors to use them in such a way as to endanger their lives or property in the lower floors; but if there be no such implied agreement, the general rules of law render them liable for injuries resulting to third parties when they knowingly let the premises to tenants to be used for purposes which they are unfitted for. In Edwards v. N. Y. & H. R. Co. 98 N. Y. 245, 249, a case which goes as far as any case to be found in the books, in relieving the landlord from injuries resulting from the improper use of tenements in the possession of his tenants, still in that case the court lays down the rule that “if the-landlord be guilty of negligence or other delictum which. — 450 — leads directly to the accident and wrong complained of, he is liable; if not so guilty, no liability attaches to him. If he lets a building or warehouse knowing that it is so weak and imperfectly constructed that the floors will break down from the weight necessarily to be placed upon them, his negligence imposes liability upon him for injury to the person or property of any one who may lawfully be upon the premises using them for the purposes for which they are demised.” “ If one builds a house for public amusements or entertainments, and lets it for those purposes, knowing that it is so imperfectly and carelessly built that it is liable to go to pieces in the ordinary use for which it was designed, he is liable to the person injured through, his carelessness. . . . It4s but a just and reasonable application of the maxim, sic utere tuo ut alienum non Imdas In Albert v. State, 66 Md. 325, the court say: “ We think it may be held as well settled in this state that where the owner of a wharf leases or rents it out, and, at the time of such renting, the wharf was in an unsafe condition for the use the lessor knew it was to be put to, and the owner knew, or by the exercise of reasonable diligence could have known, of its condition, and that one w7ho was lawfully on the wharf, and was injured in consequence of its condition, that the owner is liable.” In House v. Metcalf, 27 Conn. 631, 640, the court use this language: “The defendant contends that the mill being at the time of the accident in the exclusive occupation of his tenant, and he having no rightful control over it during the continuance of the tenancy, he was for that reason exonerated from all liability for injuries occasioned by its use. But every one who aids, abets, instigates, authorizes, or commands, as well as every one who activety participates in the commission of a tort is himself a principal tort-feasor, and liable as such. And the facts claimed by the defendant, and found by the jury, that at the time of the accident — 451 — the wheel was in the same condition as when the lease was made; that it was used in the same manner contemplated and intended by -the parties to the lease; — and that for such use the defendant was to be paid compensation by way of rent,-— so far from exonerating him from, establish his legal liability for the plaintiff’s injury.” In a case lately decided in the supreme court of Ehode Island (Joyce v. Martin, reported in 36 Alb. Law J. 272; 10 Atl. Rep. 620), the learned court, after citing and comment* ing upon the cases bearing upon the question, say “ that some of the cases cited are cases in which the lessors were held liable to respond in damages, because the premises from which the injuries were received were in such a state as to be • nuisances, public or private, when let; but others are cases in which the lessors who were held to respond because the premises let by them for rent or profit, were let to be used for purposes for which they were not fit or safe to be used, and because the lessors knew when they let them the purposes for which they were to be used, and also knew, or ought to have known, that they were not fit or safe to be’’ so used,” and the court cited Godley v. Hagerty, 20 Pa. St. 387, which case was reaffirmed in Carson v. Godley, 26 Pa. St. 111. These were well considered cases, and the argu ment of the learned court seems to us conclusive. The defendant was the landlord; he had himself built the warehouses, and let them to the United States for the storage of heavy goods. They proved of insufficient strength to sustain the weight placed in them by the tenant, the United States, and, while occupied and used by the tenant, they fell and injured the plaintiff, who brought the action. After a very able review of the cases bearing upon the question involved in the case, the court say: “ Had it [the building] fallen before it was used at all,— had the superstructure been so defective as to be unable to sustain itself, — - it would have been indictable as a common nuisance, and — 452 — nobody doubts that the owner, at whose instance it was erected, would have been answerable to individuals for the damage occasioned; but the wrong consisted not in erecting walls incapable of standing alone, but in building and renting the store for a specific purpose for which it was unfit and unsafe. In itself it may not have been a common nuisance, but the maxim sio utere, is not limited to common nuisances. . . . Be it then that the store was a lawful structure, the defendant so used it as to hurt the plaintiff in his property, and this was to violate a fundamental principle of law. With his eyes open to the fact that the government would use his store-house for heavy storage, he let them have it, knowing that it was unfit for such use, and he inserted no word of caution or restraint in the lease. . . . Tempted by a large rent, he permitted this building to be subjected to burdens too heavy for it to bear, though lighter than the tenant had the right to impose, and herein is the ground of his liability.” The cases above cited, we think, state the law correctly. No one, we think, would question the right o'f the plaintiff against the landlord in this case, if he had been himself in the actual occupation of the premises, and caused it to break down by overloading it, especially if it were shown that he knew that he was placing a greater load upon it than it could be reasonably expected to bear. Can it make any difference with his liability to third persons that he has not overloaded it himself, but has let it to another, and at the same time authorized him to overload it, and so caused the injury? We think not. Under the allegations of the complaint in the case at bar, the landlord is more culpable than the tenants. If the allegations of the complaint are true,— and for the purposes of this case they are admitted to be true,— the tenants were clearly induced to overload the upper floors of the building in question, by reason of the declaration and assurance of the landlords, at the time — 453 — they took their lease, that they could safely so load them; and that the building was sufficiently strong to sustain such, load, and even a much greater one. It is alleged in the complaint that the landlords knew when they leased these upper floors that the tenants desired to use such floors for heavy storage; that they also knew that such floors were not of sufficient strength for such use. Under these allegations the landlords are joint wrong-doers with the tenants in overloading the floors, and causing them to fall, and so inflicting an injury upon the plaintiffs. Their culpability, under the facts alleged in the complaint, is greater in fact than that of the tenants, who acted upon their representations, and probably relying upon the superior knowledge of the landlords as to the strength of such floors. We are very clear that the allegations of the complaint state a good cause of action against the defendants Rees, and that the court erred in sustaining their demurrer to the complaint. That the learned county court rightly held that the complaint stated a good cause of action against the defendants Lindemann, the tenants, hardly admits of a doubt. The law compels every man to so use his own as to cause no unnecessary injury to his neighbor. They did so use these rooms as to destroy the plaintiffs’ property. The charge in the complaint is that the floor fell because overloaded by the Lindemanns. They had no right to load the floors beyond their capacity, and doing so is a wrong, and, if the damage occurs by reason of such wrong, they are responsible. If it were necessary to allege the negligence of the tenants in overloading the upper floor, it is sufficiently alleged in the complaint. See Young v. Lynch, 66 Wis. 514. It is no objection to a recovery against the tenant that a recovery may be had for the same wrong against the landlord. This is fully sustained by the authorities above cited. — 454 — The' facts stated in the complaint, independently of the general allegation of negligence, are sufficient to constitute a cause of action against the tenants. If the plaintiff proves the facts alleged in its complaint, it seems to us that it will have made a prima facie case, at least, against the tenants, and they will be put to proof, if they have any, showing that it was an inevitable accident, or that the floor fell from some other cause than from their overloading it. Wood, Landl. & T. 928; Killion v. Power, 51 Pa. St. 429; Moore v. Goedel, 34 N. Y. 527; Whart. Neg. (2d ed.) § 791; Edwards v. Halinder, Poph. 46. By the Court.— The order sustaining the demurrer of the respondents Bees is reversed; and the order overruling the demurrer of the appellants Limdemann is affirmed; and the cause is remanded for further proceedings according to law. Lyon and Orton, JJ., dissent.