Olin v. Honstead , 60 Idaho 211 ( 1939 )

I sincerely regret that I cannot concur in the opinion written by Justice Morgan. In my judgment the facts alleged in the complaint, if sustained by evidence, would make a case that should be submitted to a jury for its finding whether the balcony, constructed as described and let and demised for the purpose of conducting a beauty shop and school, was so negligently constructed as to constitute a menace and danger to the lives and limbs of those who used it. It seems to me that the construction of this balcony, with a narrow stairway as the only means of ingress to and egress from the same, and the letting of the same for the purpose of conducting a business thereon, presents, as an issue of fact to be determined by a jury, the question whether the landlord was guilty of negligence.

I cannot subscribe to the statement in the majority opinion that it does not "appear from the complaint that the balcony was not a safe and proper place to conduct a beauty shop and school." That statement is, in effect, a pronouncement that as a matter of law a balcony constructed and used as the one described was constructed and used, is a safe and proper place on which to conduct a business of the kind conducted on this balcony.

The allegation in the complaint "that said balcony planned, designed and constructed as hereinbefore set forth, was not provided or equipped with ordinary means of escape and egress by stairs, halls, doorways or windows," etc., is criticised by the majority opinion as a "statement of conclusions, not of ultimate facts." Nevertheless, it seems to me that it is a sufficient pleading under which to admit evidence, pro and con, as to whether balconies of this kind are ordinarily equipped with means of escape other than or in addition to the means afforded by the "narrow stairway," and, if so, whether in the minds of the jury the absence or lack of such other means in this instance constituted negligence.

The standard of care required by the law is the conduct of a reasonably prudent person; and "the best way to get a just determination as to whether a man or woman acted 'as a reasonably prudent person would have acted under like circumstances,' is to submit the question to a jury, and get the benefit of the combined opinions of twelve persons on it. It is only when there can be but one possible answer reasonably made to that question, that a trial judge, or an appellate court, should assume to decide it." (Adkins v. Zalasky, 59 Idaho 292,81 P.2d 1090.)

Nor can I subscribe to the holding by the majority that the landlord is not liable because the fireworks were not added to the business in the building until after the lease was executed and the tenancy had commenced, and that he is not liable for the further reason that "after the period of tenancy commenced the landlord had no power, and owed no duty, to supervise his tenants' business to the end that it not be conducted in such a way as to be dangerous."

However correct as a statement of law that the landlord has no power to supervise his tenants' business may be, it is beside the question here. It hardly requires the citation of authorities to the proposition that if the negligence of one tort-feasor concurs with the negligence of another to produce a single result, which would not have happened but for such concurrence, both tort-feasors are liable though their acts or omissions of negligence were independent of each other. (Woodland v. Portneuf Marsh Valley Irr. Co., 26 Idaho 789,146 P. 1106; 62 C.J. 1133; McDonald v. Robinson et al.,207 Iowa, 1293, 224 N.W. 820, 62 A.L.R. 1419. See, also, Brose v. TwinFalls Land Water Co. et al., 24 Idaho 266, 133 P. 673, 46 L.R.A., N.S., 1187.)

Hence it is immaterial whether the concurring acts or omissions of negligence originated at the same time.

True, all the authorities agree that a landlord is not liable for injuries resulting from a nuisance or defect in the premises arising after the commencement of the tenancy. But in the case at bar the defective and dangerous balcony, that is, the negligence of the landlord, did exist at and prior to the demise of the premises by him.

Can it be said as a matter of law that the faulty design of the balcony was not a contributing cause of the injuries sustained by the plaintiff? Is not that a question for the jury?

I submit that the demurrer ought to be overruled.

Holden, J., concurs in the foregoing dissenting opinion of Koelsch, D. J., for reasons therein stated and other reasons.