BELLON v. FOX WEST COAST THEATRES (1934)

This is an action for damages brought by the widow of Raymond C. Bellon, a plumber, who was killed on April 4, 1932, while engaged in cleaning out a soil pipe in a basement under a storeroom in the Balboa Theatre building in the city of San Diego. Seven defendants were named, but the action was dismissed as to one, a nonsuit was granted as to two, a motion for a directed verdict was granted as to three, and there was left to the jury only the question as to the liability of Silver Gate Theatres, Inc. A verdict was returned in favor of the plaintiff for $20,000. From the ensuing judgment, the remaining defendant has appealed and will herein be referred to as the appellant. While the plaintiff filed notice of appeal from all rulings and orders in connection with the directed verdicts in favor of three of the defendants, that appeal has evidently been abandoned as nothing has been presented in connection therewith and the only brief filed on behalf of plaintiff and respondent asks only that the judgment and verdict finally entered be sustained.

The Balboa Theatre building is located at the southwest corner of Fourth and E streets in the city of San Diego. The appellant was at all times here involved the lessee of the entire building, and for the purpose of this appeal may be treated as the owner thereof. The main portion of the building is occupied by the Balboa Theatre, the entrance to which is at the corner of Fourth and E. To the south of the theater entrance and facing Fourth street are certain storerooms, above which are office rooms, all of which were leased by the appellant to various tenants. The first of these storerooms was leased by the appellant to a Mrs. Walsh, who conducted a confectionery store there under the name of the “Sweet Shop,” with her son, J. C. Milne, as manager. The next two storerooms were used as one by a restaurant. To the south of the restaurant was a lobby, in which was an elevator used as an entrance to the offices above the storerooms. Beneath the lobby just referred to, and each of these storerooms, was a basement similar in size to the room above it except that each basement room extended under the sidewalk on Fourth street. None of these basements was connected in any way with the portion of the building used by the theater. As originally constructed, the basement under the Sweet Shop was completely walled in and the only means of access was an iron stairway reaching up to a trapdoor in the floor of the Sweet Shop. There was an archway between the two basement rooms under the restaurant and a doorway beneath the southerly of those rooms and the basement room under the lobby. Access to the basement room under the lobby could be had by the elevator.

The south wall of the basement under the Sweet Shop was constructed of large square hollow tiles. At the time of the accident here in question, some of the tiles in that wall had been removed, leaving a hole probably 21/212 feet square near the center of that wall and some 21/212 feet above the floor of the basement. It was then possible to enter that room by entering the southerly basement room by the elevator, walking through the two basement rooms under the restaurant, and then crawling through this hole. Near the ceiling at one end of that room were two or three steam pipes which served other parts of the building. In the southerly wall of that room was a drain pipe, serving the offices above, which led in some manner across the two basement rooms under the restaurant and connected with the line to the sewer at the north wall of the lobby basement. This drain pipe was not exposed in the basement room under the Sweet Shop, but, near the ceiling and above the steam pipes referred to, there was a small hole through which a cleanout plug in that pipe could be reached.

In the basement under the Sweet Shop there was a carbonating machine attached by pipes running through the floor to the soda fountain in the Sweet Shop above. This carbonator was operated by an electric motor attached thereto. The current was obtained through two black insulated wires which ran from the motor to an outlet box in the basement ceiling, this being the only electrical outlet in that basement. About a foot below the ceiling, the insulation had been cut from each of these wires running to the motor and an electric drop cord was attached thereto, on the other end of which was a socket for a light globe. This drop cord was old and badly worn with the insulation entirely gone from portions thereof.

On the day in question the sewer line under the restaurant became clogged, as a result of which a large pool of water approximately 1/212 inch deep, accumulated on the floor of the southerly of the two basement rooms under the restaurant. The deceased responded to a call for a plumber and was engaged in cleaning out the drain pipe when he met his death. He was first observed by a janitor who came into the basement rooms under the restaurant. At that time the deceased was standing on a stepladder in the basement room under the Sweet Shop where he had removed the cleanout plug in the south wall of that room and inserted a steel tape, known as a plumber's “snake,” into the drain pipe. A plumber's “snake” is a flexible steel tape about 60 feet long, commonly used by plumbers for the purpose of cleaning out pipes. The janitor, while in the basement under the restaurant, heard the snake hit the sides of the sewer pipe on the south side of that basement and so informed the deceased, who came down from the stepladder and went with the janitor to be shown one of the cleanout plugs which was in the southwest corner of the southerly room under the restaurant.

A little later, the deceased was found lying on the floor of the southerly basement room under the restaurant grasping the plumber's snake, with one end thereof inserted in the pipe where the cleanout plug in that room had been removed. The other end of the snake passed through the archway into the northerly basement room under the restaurant and from that room through the hole in the wall into the basement of the Sweet Shop, where it was found to be in contact with the drop cord in that room, which has been heretofore described. Apparently, the deceased had dragged one end of the snake through the hole in the south wall of the basement under the Sweet Shop, through the north basement room under the restaurant, and into the southerly basement under the restaurant, with the result that while he was manipulating it in the southerly basement room, the part that was coiled on the floor in the room under the Sweet Shop thrashed or flopped around until it came in contact with one of the portions of the old drop cord from which the insulation was gone. This contact caused the electricity to pass from the drop cord through the snake to the decedent who was standing in the pool of water in the southerly basement room, with the natural result.

This entire case is based upon negligence in permitting a defective light cord to be maintained upon the premises, and the only question is whether such negligence can be attributed to the appellant. The appellant contends that the tenant was in the exclusive control of this basement room under the Sweet Shop and was charged with the duty of seeing that the light cord was maintained in a safe condition. For some reason, the tenant was never made a party to this action. The respondent argues that this basement room was not included in the premises leased to Mrs. Walsh and that the appellant remained in full control thereof and was entirely responsible for maintaining it in a safe condition.

The general rules concerning the liability of landlord and tenant are pretty well settled. In Hamelin v. Foulkes, 105 Cal. App. 458, 287 P. 526, 527, the court said:

“The lessee and not the lessor is ordinarily liable for injuries to third persons occasioned by the negligence of the lessee or due to a defective condition of the premises occurring after the beginning of the lease. Rider v. Clark, 132 Cal. 382, 64 P. 564; 15 Cal. Jur. 737, par. 150. This liability of the lessee exists irrespective of the covenants of the lease relating to repairs, and arises by virtue of his exclusive possession and control of the premises. The right of the lessee to possession and control of the premises is accompanied by a corresponding duty to exercise ordinary care in the use and maintenance of the premises so as not to occasion injuries to third persons. That such liability ordinarily is imposed solely upon the lessee, with certain exceptions hereinafter noted, is conceded by appellants, but it is contended that the general rule applies only where the possession and control of the entire premises passes by the lease and does not apply to the facts in the present case where only a portion of the building was leased and the injury was occasioned by failure to properly maintain a sidewalk hydrant box. There would be much force in this contention if the hydrant box was appurtenant to the entire building rather than to appellants' store, but, where the hydrant box was solely for the use of appellants' store, and was connected with appellants' meter, the lease of the store and basement to appellants passed with it the possession and control of the hydrant box as an appurtenance thereto. ‘A lease of a part of a building passes with it, as an incident thereto, everything necessarily used with or reasonably necessary to the enjoyment of the part demised. * * * The general rule is that where a store is leased, everything then in use for the store, as an incident or appurtenance, passes by the lease.’ Runyon v. City of Los Angeles, 40 Cal. App. 383, 387, 180 P. 837, 839. Much stress is placed upon appellants' testimony to the effect that they did not use the hydrant. However, it is not the actual use which is important, but the right to the exclusive possession and control which governs.

“The general rule and the exceptions thereto are stated in Rider v. Clark, supra. The court there said at page 386 of 132 Cal., 64 P. 564, 565: ‘When the tenant enters into possession under a lease, the landlord parts with all his right to and control over the premises, and is not liable to third persons, except for such defects in the premises or defective construction as existed in the premises when let to the tenant. * * * “It is well settled that a landlord is not liable for such consequences unless: (1) The nuisance occasioning the injury existed at the time the premises were demised; or (2) the structure was in such a condition that it would be likely to become a nuisance in the ordinary and reasonable use of the same for the purpose for which it was constructed and let, and the landlord failed to repair it; or (3) the landlord authorized or permitted the act which caused it to become a nuisance occasioning the injury.””’

And in Runyon v. City of Los Angeles, 40 Cal. App. 383, 180 P. 837, 840: “The original structure having been legal and in a safe condition when respondents leased the premises to their tenant, and the injuries having been received in consequence of the grating getting out of repair during the tenancy–the tenant and not the landlord being bound to repair–respondents are not liable as owners, or otherwise. * * * When the premises are in good repair at the time they are let, and the landlord, under the terms of the lease, is not bound to keep them in repair, the tenant in possession, and not the landlord, is liable for an injury resulting from a failure to repair the pavement in front of the premises. * * * The general rule is that it is the occupier, and he alone, to whom such responsibility prima facie attaches. * * * To this general rule the following exceptions are recognized, and the owner of the leased premises may be made liable: (1) If the lease be one under which he, and not the tenant, is required to keep the premises in repair; (2) if the dangerous and defective condition by which the injury was occasioned existed when the premises were leased; (3) if that which occasioned the injury was, inherently, in its nature and character, a nuisance, and was upon the premises when the lease was executed.”

The respondent argues that the question whether this basement was included in the lease is a question of fact, which has been determined by the verdict of the jury. In any event, the question remains whether the evidence is sufficient to sustain a finding against the appellant.

In the lease to Mrs. Walsh the demised premises were described as follows: “Those certain premises more particularly known and described as 866 Fourth Street, situate in the Balboa Theatre Building,” with the further recital that “the said premises to be used by the lessee for the sole purpose of conducting therein a confectionery, and for no other purpose.” The lease contains the clause: “That Lessee has examined and knows the condition of said premises and has received same in good order and repair and that he will keep said premises and the appurtenances and every part thereof in the same good order and condition as they are now,” and also provides that the lessor shall not be called upon to make any alterations, improvements, or repairs whatsoever on the premises, or any part thereof, or the appurtenances (excepting in case of damage by fire or the elements), and that the lessor shall particularly not be obliged nor required to repair any plumbing in or upon said demised premises.

Turning to the evidence upon this subject, aside from the lease, the following facts appear: This basement lies directly under the storeroom admittedly covered by the lease. As originally constructed, the only means of access was by an iron ladder through a trapdoor in the floor of the store. A prior tenant testified that she was in possession from 1925 to 1929; that when she took possession she went into the basement and finding it was not suitable for her purposes she covered the trapdoor with linoleum and used the space for fixtures. She referred to the basement as “my basement” and stated that the hole in the wall was made while she was there, although she stated this was not done by her. One of her employees testified that he went into the basement about three times a week during the time she was there and that he never went in through the trapdoor. He did not state the purpose of his visits to the basement and the record is silent as to when or by whom the hole in the wall was made. J. C. Milne, the manager of the business conducted under the lease to Mrs. Walsh, testified that when he took possession he replaced the old linoleum with new, covering the entire floor, including the trapdoor, and that he had never used that entrance to the basement; that there was no other possible entrance to the basement except the hole in the south wall thereof; that the only electrical connection with the basement was by a switch in the Sweet Shop and was there when he took possession; that the carbonator was installed in the basement on October 8, 1931, about six weeks after he took possession of the premises; that he was never in the basement until about two months after that date; that at that time he went down to see if a gas tank in connection with the carbonator had run out; that subsequently he again went to the basement to replenish another gas tank; that he had never used the basement for any purpose other than keeping the carbonator there; that he never knew of any one ever being in the basement except in connection with the carbonator; that when he first went to the basement he observed this light cord; that there was a light globe in it which he used; that he did not observe the wiring as he was interested only in the carbonator; that he did not know who had installed the light cord; and that he had never authorized any one to install it. He further testified that he understood that this room was there for his use if he wanted to use it, and that no one else had used the room to his knowledge. He stated that he entered the basement by the hole in the wall and when asked if there was any other entrance he replied, “Only the trap door, that was for my use, if I wanted to use it.” When asked who used the two basements to the south, he said he happened to know that the restaurant owner used them “so much as I would use mine, they have access to it.” With reference to the installation of the carbonator, this witness testified that it was installed for him, that the carbonator was connected by pipes with the fountain upstairs, and the motor was operated from an electric switch upstairs. He stated that he arranged with a man named Howerton to install the carbonator; that he mentioned to Howerton the best location in which to run the pipes; that the electric wiring was not mentioned; that he did not tell Howerton to put the carbonator in the basement, but he understood this was to be done; that he did not ask permission of any one, he “just went ahead and had the carbonator installed down there”; that this electric carbonator was larger and made more noise than one they formerly had upstairs and “we thought it would be better in the basement”; that he did not show Howerton the hole in the wall as he “figured he knew as much about it as I did”; that he did not go down to the basement when the carbonator was being installed, but knew that Howerton's men were doing the work; and that when the work was completed the machine worked. He also testified that when they were putting the carbonator in, Howerton came to him and told him it would be necessary to enlarge the hole in the south wall of this basement room and that he said “go ahead.” Howerton testified that he sold this carbonator and motor to Milne; that Milne told him to put it “down where you think it would be the best location”; that he did not try to use the trapdoor as he knew it was not wide enough to get the carbonator through; that there was a small hole in the basement wall which they had to enlarge in order to take the carbonator in; and that he did not know who made the electrical connection. An employee of Howerton testified that he installed the carbonator and ran the pipe lines to the fountain but did not connect up the wiring, and that when he returned the next morning he threw the switch and the motor worked. All witnesses disclaimed any knowledge as to who made the electrical connection to the motor on the carbonator or who installed the drop cord.

In Kunkel v. Abell, 170 Ind. 305, 84 N. E. 503, 504, it is said: “The term ‘premises' as here used was evidently intended to be more comprehensive than the word ‘room,’ as employed in section 7283a. In common parlance the term is broader than the word ‘room.’ As applied to the occupancy of real property it embraces any definite portion of land and the building and appurtenant structures situated thereon, over which the owner or occupant has the right and does exercise authority and control.”

And in Runyon v. City of Los Angeles, supra, the general rule is thus expressed: “A lease of a part of a building passes with it, as an incident thereto, everything necessarily used with or reasonably necessary to the enjoyment of the part demised. * * * The general rule is that where a store is leased, everything then in use for the store, as an incident or appurtenance, passes by the lease.”

In view of the language of this lease, and the testimony referred to, we think it conclusively appears that this basement room was a part of the premises leased to Mrs. Walsh and that the evidence is not sufficient to support a contrary conclusion. If there be any doubt as to the interpretation of the lease, that doubt has been removed by the conduct of the parties. Not only does it appear that the tenant thought he had a right to use the basement room but, without objection, he took possession, made an important installation of machinery, and thereafter continued to use it. That he did not use every portion of the room is of no significance, nor is the legal situation changed by the fact that he chose to enter the room by the hole in the wall instead of using the more conventional means of access which was provided. We conclude, therefore, that the case is governed by the general rules where a tenant is in complete control and possession of premises, unless it can be brought under one of the recognized exceptions to that rule.

The respondent further contends that such an exception here appears, in that the tenant was not in the exclusive control and occupation of this basement room because of another clause in the lease in question, which clause reads as follows: “That lessor has reserved the right to enter into any part of the premises hereby demised for the purpose of making repairs or alterations in the plumbing or water pipes, or the improvements connected with any portion of the building other than those hereby leased, and the lessor shall have the right to alter said building, of which the said demised premises are a part, or add thereto, and may for that purpose erect scaffolding or other necessary structures. Lessee shall not, in that event, claim, or be allowed or paid any damages for any injury or inconvenience occasioned thereby.”

It is argued that by the clause of the lease, last referred to, the appellant retained some control or possession of this basement room and was, therefore, liable for any nuisance arising therein or for the defective or unsafe condition of those premises. In this connection the respondent relies upon those cases in which it has been held that where a building is rented to different tenants, the duty rests with the landlord to keep in safe condition those portions of the building over which he retains control and which are for the common use and benefit of all of the tenants. The general rule is thus stated in 36 C. J. 243: “Where a landlord has rented a building to different tenants but retained control over parts thereof for the general use and benefit of all the tenants, he will be liable for injuries to a stranger resulting from the defective condition of the parts under his control.”

We think those rules have no application here. In general, those rules apply to entrances, hallways, and portions of a building which are kept for the common use and enjoyment of the various tenants and persons having the right to visit them. The appellant did not retain control over this basement room and the room was certainly not intended or used for the use and benefit of all of the tenants. While there was a drain pipe in one wall of the room and certain steam pipes near the ceiling at one end of the room, which pipes served other parties in the building, the other tenants so served could have no occasion to enter the room for anything in connection with these pipes. The fact that these pipes passed through the room, or through one of its walls, would not give the appellant control of the entire room regardless of other considerations. Looking to the other matters, we find that the room was a part of the premises leased to the tenant, who had the right to use the room subject to any inconvenience that might be caused by the presence of the pipes. By the reservation in the lease the appellant merely reserved the right to enter the room for the purpose of making repairs or alterations in these pipes. This option was never exercised and the situation which caused the injury, with which we are here concerned, had nothing to do with these pipes or with anything done in connection therewith, but was a condition in that part of the room controlled by the tenant which arose particularly from the way in which certain machinery and appliances were installed for the tenant and allowed by him to remain. The premises were safe when the tenant took possession, and the defective condition arose only in connection with the use he made of the room. While the tenant saw and used the drop cord, which was defective, the appellant's managers had never been in this basement room after the tenant took possession and the uncontradicted evidence is that the appellant had no knowledge that either a drop cord or the carbonating machine had been installed there. The duty to keep this appliance safe did not rest upon the landlord, and the evidence is insufficient to bring this case within the exception relied upon by the respondent. The mere fact that these pipes passed through the room in question could not, under the circumstances here appearing, transfer to the landlord the duty of keeping the room, in general, in a safe condition or make the landlord responsible for the condition of appliances kept therein by the tenant.

It is further urged by the respondent that the deceased was the invitee of the lessor, that the defective condition of the wire must have existed for some time and should have been known to the appellant, and, therefore, the appellant was liable on the theory that a person invited upon the premises of another may recover from such owner for any injuries arising out of dangerous conditions known to the owner and not known to the person so invited. This is based upon the claim that the appellant's manager called the plumber and ordered the work done. One witness testified that three phone calls came into the plumbing shop, that in the third the voice was not the same voice as in the others, and that the last man stated that he was Mr. Kendrick, the manager of the building. Kendrick denied that he had made such a call, and there was other evidence that the manager of the restaurant asked the janitor to call a plumber. And the most that is claimed is that the man who said he was Mr. Kendrick asked why a man had not been sent and whether they intended to send one. It is argued that it must be assumed, in support of the judgment, that the jury impliedly found that the appellant had, in fact ordered the work done. No such assumption is possible since the court instructed the jury to the effect that the deceased was lawfully on the premises and therefore it made no difference who invited him.

The cases relied upon by the respondent in this connection are those where an invitation to use the premises of another may be inferred, where a certain duty rests upon the invitor, and where he has been negligent in that regard. We think these cases have no application here. No question of the right of the deceased to be present is involved and the entire question is as to which of two parties was under the obligation to remedy a certain condition. We think this duty rested upon the tenant, rather than the landlord, and that the question of who called the plumber is immaterial, so far as this appeal is concerned. While the plumber was rightfully in the building, he was injured not by any defective condition in the pipes over which it may be said the landlord had reserved a right of control, but by a defective appliance installed for and maintained by a tenant, without the knowledge of the landlord, in a portion of the building over which the tenant had control. Under such conditions, we think no liability can be imputed to the landlord under the general theory that the deceased was his invitee. Regardless of any invitation, it was necessary for the respondent to show a duty owed by the appellant and a failure to perform that duty.

That portion of the judgment which is against the appellant Silver Gate Theatres, Inc., is reversed, and the balance of the judgment is affirmed.

BARNARD, Presiding Justice.

We concur: MARKS, J.; JENNINGS, J.