Flood v. Pabst Brewing Co.

KiseavtN, J. Tbe only question involved upon this appeal is whether tbe complaint states a cause of action against the defendant Pabst Breiuing Company. We have set out quite fully tbe complaint in tbe statement of facts and need not repeat tbe allegations of it in tbe opinion. Tbe principal contentions of counsel for appellant are that tbe owner of property owes no duty to a mere licensee to keep tbe premises reasonably safe, and that tbe injured party was a mere licensee; that no duty was owed to tbe tenant here to have tbe premises in repair or safe or suitable for occupation; and that tbe invitee of tbe tenant is not tbe invitee of tbe landlord and no greater duty is owed to tbe invitee than to tbe tenant; that tbe action for negligence in this case cannot be founded on failure to perform a contract to repair. We need not discuss tbe question whether tbe appellant here would be liable if tbe injured infant were a mere licensee, because it is alleged that she was on tbe premises by invitation and was an invitee. That a landlord is liable to a tenant and tbe invitee of a tenant for injuries received through defects in construction of a'building rendering it dangerous, and which dangerous condition was known to tbe landlord when be executed tbe lease and not known or should not have been known to tbe tenant or'invitee, is quite well settled. Inglehardt v. Mueller, 156 Wis. 609, 146 N. W. 808; Smith v. Lederer, 157 Wis. 479, 146 N. W. 888; Anderson v. [632] Hayes, 101 Wis. 538, N. W. 891; Kurtz v. Pauly, ante, p. 534, 149 N. W. 143. In Schaefer v. Fond du Lac, 99 Wis. 333 (74 N. W. 810), at page 338 tbis court said: “The law is firmly established by the great weight of authority, that, as between the owner of leased property and a mere stranger, the owner is liable for an injury to the latter, caused by a dangerous defect in the property existing at the time of the lease, unless protected by a covenant binding the lessee to remedy such defects; ,and there is much authority that he is liable anyway, that is, that he cannot shift the liability for known existing dangers onto the lessee by a covenant to repair.” But in addition to the defective construction alleged in the complaint we have also the allegations to the effect that the defendant Pabst Brewing Company agreed to keep the premises in repair and failed to do so. It is argued, however, that this is a contract relation which must be enforced between landlord and tenant and will not support an action based upon negligence of landlord in failure to repair by a stranger to the contract. It is true there is conflict of authority upon this proposition, but we think the weight of authority and the better reason support the doctrine that a landlord who agrees 'to keep premises in repair is liable to an invitee of the tenant in an action of tort for breach of his duty to repair. Barron v. Liedloff, 95 Minn. 474, 104 N. W. 289; Mesher v. Osborne, 75 Wash. 439, 134 Pac. 1092; Patten v. Bartlett, 111 Me. 409, 89 Atl. 375; Stillwell v. South Louisville L. Co. 22 Ky. L. Rep. 785, 58 S. W. 696, 52 L. R. A. 325; Edwards v. N. Y. & H. R. Co. 98 N. Y. 245; Barrett v. Lake Ontario B. I. Co. 174 N. Y. 310, 66 N. E. 968. Counsel for appellant relies mainly upon Burdick v. Cheadle, 26 Ohio St. 393. This case is out of line with the current of authority. While the landlord is liable to the tenant for breach of contract to repair he is also liable to the invitee of the tenant in [633] tort for breach of duty. Where a landlord agrees to keep leased premises in repair, his right to enter and have possession of the premises for such purpose is necessarily implied, and his duties and liabilities in that regard are in some respects similar to those of an owner and occupant. Iiis negligent failure to repair, therefore, is a breach of duty, and any one lawfully upon the premises by invitation of the tenant who suffers injury in consequence of the landlord’s breach of duty has an action for negligence against the landlord. Boyce v. Tallerman, 183 Ill. 115, 55 N. E. 703; Moore v. Steljes, 69 Fed. 518. While the decisions of this court are not directly in point they inferentially, if not directly, support the doctrine that where a landlord agrees to keep premises leased in repair he is liable to the invitee of a tenant for breach of duty in that regard. Smith v. Lederer, 157 Wis. 479, 146 N. W. 888; Anderson v. Hayes, 101 Wis. 538, 77 N. W. 891; Cole v. McKey, 66 Wis. 500, 29 N. W. 279; Dowling v. Nuebling, 97 Wis. 350, 72 N. W. 871; Schaefer v. Fond du Lac, 99 Wis. 333, 74 N. W. 810; Hasbrouck v. Armour & Co. 139 Wis. 357, 121 N. W. 157; Haley v. Swift & Co. 152 Wis. 570, 140 N. W. 293; Johanson v. Webster Mfg. Co. 139 Wis. 181, 120 N. W. 832; Moroder v. Fox, 155 Wis. 503, 143 N. W. 1040; Brunswick-Balke-Collender Co. v. Rees, 69 Wis. 442, 34 N. W. 732. And it has been held by this court that a landowner is liable for injuries to one using due care, who comes upon his premises by his invitation, express or implied, by reason of the unsafe condition of such premises known to the owner and which he negligently suffers to exist and of which the injured party has no notice or knowledge. Hupfer v. Nat. D. Co. 114 Wis. 279, 90 N. W. 191. Moreover, in the instant case it is alleged that the place was dangerous and that the landlord knew it and failed to repair, and knew that it was the custom of children to play upon the dangerous structure. Under such circumstances [634] this court has ruled that the landowner is liable. Webster v. Corcoran Bros. Co. 156 Wis. 576, 146 N. W. 815; Kelly v. Southern Wis. R. Co. 152 Wis. 328, 140 N. W. 60; Harris v. Eastern Wis. R. & L. Co. 152 Wis. 627, 140 N. W. 288. We are convinced that the complaint stated a cause of action against the appellant, Pabst Brewing Company. By the Court. — The order is affirmed.