{ "id": 5289481, "name": "Bernard Schwandt, by his Next Friend, v. Metzger Linseed Oil Co.", "name_abbreviation": "Schwandt v. Metzger Linseed Oil Co.", "decision_date": "1901-03-05", "docket_number": "", "first_page": "365", "last_page": "370", "citations": [ { "type": "official", "cite": "93 Ill. App. 365" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "154 Ill. 212", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "138 Ill. 370", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5447219 ], "opinion_index": -1, "case_paths": [ "/ill/138/0370-01" ] }, { "cite": "37 N. Y. S. 345", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 3470018 ], "opinion_index": -1, "case_paths": [ "/nys/37/0345-01" ] }, { "cite": "86 Ill. App. 268", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5268246 ], "opinion_index": -1, "case_paths": [ "/ill-app/86/0268-01" ] }, { "cite": "51 N. Y. S. 430", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 3419638 ], "opinion_index": -1, "case_paths": [ "/nys/51/0430-01" ] }, { "cite": "47 N. Y. S. 636", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 3446595 ], "opinion_index": -1, "case_paths": [ "/nys/47/0636-01" ] }, { "cite": "72 N. W. 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App.", "case_ids": [ 5238051 ], "opinion_index": -1, "case_paths": [ "/ill-app/73/0432-01" ] }, { "cite": "5 Sup. Ct. 182", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": -1 }, { "cite": "76 N. Y. 92", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 539665 ], "opinion_index": -1, "case_paths": [ "/ny/76/0092-01" ] }, { "cite": "167 Mass. 302", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 473645 ], "opinion_index": 0, "case_paths": [ "/mass/167/0302-01" ] }, { "cite": "144 Ill. 482", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3081435 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/144/0482-01" ] }, { "cite": "68 Ill. 47", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2627461 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/68/0047-01" ] }, { "cite": "78 Ill. App. 540", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5788967 ], "opinion_index": 0, "case_paths": [ "/ill-app/78/0540-01" ] }, { "cite": "86 Ill. App. 268", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5268246 ], "opinion_index": 0, "case_paths": [ "/ill-app/86/0268-01" ] }, { "cite": "72 N. W. Rep. 741", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "129 Mass. 33", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2133284 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/mass/129/0033-01" ] }, { "cite": "80 Ky. 598", "category": "reporters:state", "reporter": "Ky.", "case_ids": [ 4396328 ], "opinion_index": 0, "case_paths": [ "/ky/80/0598-01" ] }, { "cite": "69 Fed. Rep. 518", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 3786327 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/f/69/0518-01" ] }, { "cite": "167 Mass. 306", "category": "reporters:state", "reporter": "Mass.", "opinion_index": 0 } ], "analysis": { "cardinality": 529, "char_count": 9452, "ocr_confidence": 0.583, "pagerank": { "raw": 1.7879030823513442e-07, "percentile": 0.7145418516677999 }, "sha256": "61412b231db83645c65d3b5e2ba2684697fad565d0a0ab24e4ba7f7410ee0ba4", "simhash": "1:4b90a5d8cbb39014", "word_count": 1697 }, "last_updated": "2023-07-14T18:02:01.878414+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Bernard Schwandt, by his Next Friend, v. Metzger Linseed Oil Co." ], "opinions": [ { "text": "He. Justice Wiedes\ndelivered the opinion of the court.\nPlaintiff in error, a minor, aged about nine years, who, on \u00a1November 2,1895, was injured by a fall from a stairway caused by a defective railing thereon, brought suit by his next friend against the defendant in error to recover for his injuries, a trial of which before the court and a jury resulted in a verdict, directed by the court at the close of the plaintiff\u2019s evidence, finding the defendant not guilty, and a judgment thereon, to reverse which this writ of error is prosecuted.\nIn substance, the evidence shows that Herman Schwandt, the father of plaintiff, was at the time of the accident the tenant of defendant of one of three flats of the building where the injury occurred; that there was a stairway in the rear of the building used by all the tenants of the building in common, including plaintiff\u2019s father. This stairway had a railing or banister along it, and at the landing at each flat, and had been out of repair, in a loose and shaky condition, for a month or more before the accident. Plaintiff was a member of his father\u2019s family and resided with his father and mother in their flat. When plaintiff\u2019s father rented the flat the representative of defendant, as the evidence tends to show, agreed to keep the premises in repair, and it appears that from time to time he directed plaintiff's father to make certain repairs, which were made, and paid for by such representative; also that the same representative was notified in July before plaintiff\u2019s injury that the railing or banister in question ivas loose and shaky, and in a dangerous condition, and he promised to have the same repaired, but failed so to do.\nPlaintiff did not know of the condition of the railing, and as he passed down the stairway he stopped and leaned over and against the railing, which gave way because of its loose and shaky condition, causing plaintiff to fall to the ground below, which resulted in the injury for which the suit was instituted.\nWe are of opinion that the cause should have been submitted to the jury, and .that the court erred in directing a verdict. 12 Am. & Eng. Enc. Law, 687 n; Taylor\u2019s Landl. & Tenant, Secs. 175, 175 a, p. 198, and cases cited; Culver v. Kingsley, 78 Ill. App. 540, and cases cited; Boske v. Collopy, 86 Ill. App. 268; Gridley v. City of Bloomington, 68 Ill. 47; Payne v. Irvin, 144 Ill. 482-8; Wilcox v. Zane, 167 Mass. 306; Moore v. Steljes, 69 Fed. Rep. 518; Coke v. Gutkees, 80 Ky. 598; Looney v. McLean, 129 Mass. 33; Wilber v. Follansbee, 72 N. W. Rep. 741 (Wis.); Rouillon v. Wilson, 51 N. Y. Sup. 430.\nMr. Taylor, in Sec. 175 supra, says, where the landlord \u201c has covenanted to repair, and the injury arises from this want of repair, although the occupant is in the first instance liable, the landlord may be sued at once to avoid circui ty of action.\u201d The same author in Sec. 175\u00ab, says: \u201cWhere the landlord retains possession or control of any part of the tenement, the rest of which is under the demise, while his duty to third persons is complete, his liability to the tenant depends on the exclusiveness of his possession and active control.\u201d (Citing cases.) These cases hold that where rooms in a building are leased to different tenants, the landlord is bound to use reasonable care to keep the common staircase in repair, and, failing to do so, he is liable for injuries resulting to one of the tenants by reason of defects in the staircase. And in Looney v. McLean, supra, the court holds that the responsibility of the general owner is to all persons, including the tenants of his building. In Wilcox v. Zane, 167 Mass. 302-6, such liability was held to extend not only to the tenant, but to a person who was working gratuitously at the request of a tenant upon the premises \u2014a roof for drying clothes, used in common by several tenants of the landlord.\nIn Moore v. Steljes, 69 Fed. Rep. 518, the liability of the landlord to the tenant to keep the premises in repair was held to extend to the tenant\u2019s child, though in that case there was a warranty by the landlord to the tenant of the safety of the premises.\nIn Gridley v. City of Bloomington, supra, where the question was as to the liability of the owner or occupier of premises for failure to keep in repair the covering of a vault in the sidewalk in the street in front of the premises, the court states the general rule to be that the occupant and not the owner is liable in such case, but says there are two exceptions, the first of which is :\n\u201c Where the landlord has, by an express agreement between the tenant and himself, agreed to keep the premises in repair, so that in case of a recovery against the tenant he would have his remedy over, then, to avoid circuity of action, the party injured by the defect and want of repair may have his action in the first instance against the landlord; but such express agreement must be distinctly proved.\u201d\nIn Payne v. Irvin, supra, where the question was as to the liability of an owner to a tenant caused by the blowing down of a signboard xvhich advertised the oxvner\u2019s business carried on in a part of the building which was rented to the tenant, the court say :\n\u201c The landlord, as to that portion of the building over xvhich he retains control, must be held to also retain the responsibility to keep the same in reasonable repair in respect of all persons, including the tenants of the building.\u201d (Citing many cases.)\nIn the Boske case, supra, xvhich was- a case of a tenant against a landlord for injuries resulting from a defective board walk which was used in common by several tenants, the court, while reversing the cause for insufficiency of proof, approved an instruction xvhich, in substance, told the jury that the landlord xvas liable to his tenant if he was negligent as to the repairs of such a sidexvalk.\nIn viexv of these authorities, there being evidence shoxving an agreement of the defendant to make repairs, as xvell as to repair the railing or banister causing the injury, after notice of its dangerous condition, and also that the stairway of which this railing or banister formed a part was used in common by other tenants in the building, as well as plaintiff\u2019s father, that plaintiff was a member of his father\u2019s family, resided with his father, did not know of the danger, and was injured by reason of the defective and dangerous condition of the railing, we think the evidence should have been submitted to the jury. The judgment will therefore be reversed and the cause remanded.", "type": "majority", "author": "He. Justice Wiedes" } ], "attorneys": [ "King & Gross, attorneys for plaintiff in error, Andrew J. Hieschl, of counsel,", "Stebee & Fueber, attorneys for defendant in error." ], "corrections": "", "head_matter": "Bernard Schwandt, by his Next Friend, v. Metzger Linseed Oil Co.\n1. Landlord and Tenant\u2014Liability for Failing to Keep a Contract to Repair.\u2014Where a lessor agrees to keep the leased premises in repair and fails to do so, he is liable for injuries to the children of his tenant resulting from his failure to perform his agreement to make such repairs.\n3. Same\u2014Actions by Third Parties for Injuries Resulting from a Failure of a Lessor to Keep his Agreement to Repair.\u2014Where a lessor agrees to keep leased premises in repair and fails to do so, and a child of the lessor sustains an injury, resulting from such failure, an action may be brought at once against the lessor and circuity of action avoided.\nTrespass on the Case, for personal injuries. Error to the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in this court at the October term, 1900.\nReversed and remanded.\nOpinion filed March 5, 1901.\nKing & Gross, attorneys for plaintiff in error, Andrew J. Hieschl, of counsel,\ncontended that a landlord has been held liable under the following instances :\nTo a spectator in a public hall: Camp v. Woods, 76 N. Y. 92.\nTo the tenant\u2019s wife: Simons v. Elliott, Montreal Law Reports, 5 Sup. Ct. 182; Sontag v. O\u2019Hare, 73 Ill. App. 432.\nTo the tenant\u2019s boarder : Wilcox v. Zane, 167 Mass. 306.\nTo various members of the family : See cases in Hines v. Wilcox (Tenn.), 34 S. W. Rep. 420.\nTo tenant\u2019s visitor: Coupe v. Platt (Mass.), 52 N. E. 526; Markin v. Crumbie, 35 N. Y. S. 1027, and many cases cited; Monteith v. Finkbeiner, 21 N. Y. S. 288.\nTo tenant\u2019s brother: Brady v. Valentine, 21 N. Y. S. 776.\nTo tenant\u2019s child: Moore v. Steljes, 69 Fed. Rep. 518; Schilling v. Abernethy, 112 Pa. St. 440; Burns v. Solomon, 3 Ohio, N. P. 185; Coke v. Gutkese, 80 Ky. 598.\nLessor has been held liable even to the tenant\u2019s mother-in-law: Defiance Water Co. v. Olinger, 54 Ohio St. 536.\nCondition of all of those portions of the premises which are for the common use of all tenants is chargeable to the landlord. Looney v. McClean, 129 Mass. 33; Wilber v. Follansbee (Wis.), 72 N. W. Rep. 741; Miller v. Rinaldo, 47 N. Y. S. 636; Rouillon v. Wilson, 51 N. Y. S. 430.\nThis principle is recognized, and is to be applied whenever notice of defect is proved. Case of Roske v. Callopy, 86 Ill. App. 268.\nThe existence of the defect for three months has been held to imply notice to the landlord. Feinstein v. Jacobs, 37 N. Y. S. 345.\nBut in the case at bar the defect existed longer, and the evidence shows actual notice to the lessor\u2019s agent in charge.\nIt can not be claimed that the plaintiff\u2019s father was negligent in remaining in the premises under the constant promises of repair, and even if it were, \"the neglect would not be chargeable against the plaintiff himself. Chicago City Railway Co. v. Wilcox, 138 Ill. 370; Daube v. Tennison, 154 Ill. 212.\nStebee & Fueber, attorneys for defendant in error." }, "file_name": "0365-01", "first_page_order": 389, "last_page_order": 394 }