Marshall v. Heard

It appeal's from the allegations of appellant’s petition and amendments that he was not on the passage way at the invitation, either expressed or implied, of the appellees, or either of them ; but that he was .there of his own accord to see a tenant occupying one of the rooms in the second story of the storehouse of the Heards. These rooms upon the second floor wore rented to different persons as bed rooms and offices, while the Heards occupied the first story as a store for the sale of merchandise.

Nor does it appear from the allegations of the petition and amendments that the defects in the passage way existed at the time the rooms in the second story of the houses were leased. There is no allegation to the effect that the appellees had contracted with their tenants occupying the rooms in the second story of the'building to keep this passage way or the leased premises in repair. •

At common law the occupant, and not the owner, is bound, as to the public, to keep the premises in such repair that they may be safely visited by the public. And the occupant is prima facie liable to third persons for damages accruing to them from defects in the leased premises. Thompson on Negligence, vol. 1, page 317 and note 5. And it is well settled that to give the party injured a right- of action for damages arising from defects in rented premises against the owner, he must show that such defects existed at the time the premises were leased. Staple v. Spring, 10 Mass., 72; Durant v. Palmer, 29.N. J. Law, 544; Irvine v. Wood, 51 N. Y., 228.

It is said in Shearman & Redfield on Negligence, § 503, p. 578, “ The liability of the landlord, however, exists only in favor of persons who stand strictly upon the rights as strangers. Those who claim upon the ground that they were invited into a dangerous place must seek their remedy against the person who invited them. If they are the guests of the tenant, he, and not the landlord, is the *268person from whom they must seek redress for injuries caused by defects in the premises.”

We conclude that the court did not err in sustaining the demurrer to appellant’s petition and in dismissing the case.

Therefore the judgment ought to be affirmed.

Affirmed.

[Opinion approved April 17, 1883.]