Donaldson v. Wilson

Ciiamplin, J. Plaintiff brought an action on the case to recover the value of certain personal property, destroyed in consequence of the falling of a building owned by7 Samuel W. Odell, the defendant’s testator. Judgment was rendered for Odell, who subsequently died, and the suit was revived in the name of the defendant, as his executor. From the evidence produced on the trial by the plaintiff it “appears, that for some time prior to the twentieth day of March, 1882, Brown & Friend were the owners of lot fifteen (15), of subdivision of block seven (7), of the city of Muskegon, on which was a two-story brick building, the foundations of which were in a defective condition ; and that, by reason of such defects, the building fell to the ground in December following. On the twentieth day of March, 1882, Brown & Friend made a written lease of said lot and building to Charles R. Walters and Richard Sonenburg, for the term of one year from and after April 1,1882. In the lease, Walters & Sonenburg agreed to pay for all repairs made during its life ; not to assign nor transfer the lease, or to sublet the premises, or any part thereof, without the written assent of the lessors; to keep the premises, and every part •thereof, during the continuance of the lease, in as good repair, and to yield them at the expiration of the term to the lessors in like condition, as when taken, reasonable irse and wear and damage by the elements excepted. Walters & Soncnberg at once took possession, using the ground floor for a saloon and the second story as a residence, Sonenburg subsequently selling out to Walters, who continued in possession, running the saloon until the building fell. In May, 18S2, Brown & Friend sold the premises to S. W. Odeil, [90] subject to the lease to Walters & Sonenburg, and assigned the'lease to him. In September, 18S2, the plaintiff, without Odell’s knowledge or assent, rented from Walters, rooms in the second story of the building, which she occupied as a residence until December 28, 1882, when the building fell and her property was damaged. The plaintiff kneiv nothing of the defective condition of the building, nor did she know wdio owmed it. In March or April, 18S2, Brown & Friend had the building examined, but the testimony does not show that Odell had any knowledge of its condition.” The ground of action alleged in plaintiff’s declaration rests on a breach of duty to repair the building, which was imposed on Odell by reason of his ownership. In order to sustain her action, it was incumbent on the plaintiff to show that Odell owed her a clear legal duty to keep the premises in repair. The plaintiff claims that it was the duty of Odell to have taken such care of the foundation walls of his building, that they should not, from natural and a very ostensible decay, precipitate the building upon the property of the plaintiff; that the extremely defective and dangerous condition of the walls was so obvious, that, if Odell did not know it, he ought to have known it. It is well established that the owner of lands is liable in damages to those coming thereon, using due care, at his invitation or inducement, express or implied, on any business to be transacted with or permitted by him, for an injury occasioned by the unsafe condition of the premises, which i& known to him and not to them, and which he lias suffered negligently to exist, and of which they have received no notice: White v. France, 2 C. P. Div. 308 (21 Eng. R. 305); Dublin, W. & W. Railway Co. v. Slatterly, 3 App. Cas., page 1155 (24 Eng. R. 703); Hartwig v. Chicago & N. W. Ry. Co., 49 Wis. 358; Hayward v. Merrill, 94 Ill. 349; Camp v. Wood, 76 N. Y. 92; Beck v. Carter, 68 N. Y. 283; Davis v. Central Cong. Society, 129 Mass. 367; Nickerson v. Tirrell, 127 Mass. 236; Carleton v. Franconia Iron, etc., Co., 99 Mass. 216; Bennett v. Railroad Co., 102 U. S. 577 [91] Samuelson v. Cleveland Iron Mining Co., 49 Mich. 170; and cases there cited. But neither the plaintiff nor her goods were upon Odell’s premises by any invitation or inducement from him. There were no business transactions between her and the owner. She entered upon the premises and placed her property there without Odell’s knowledge or permission, and in violation of his rights. Plaintiff claims that inasmuch as she rented the rooms which she occupied of Walter in September, and continued in such occupancy until in December, when the building fell, the assent of Odell to the subletting ought to be presumed. But there is no evidence in the case which shows, or tends to show, that Odell had either knowledge or notice of the subletting, or of her occupancy of the premises, and unless he did have such notice or knowledge, there is no foundation for presuming that he assented thereto. It therefore appears that defendant’s testator owed to plaintiff no duty to keep the premises in repair. The cases cited in defendant’s brief fully support the views above expressed. The judgment must be affirmed. The other Justices concurred.