Rosenthal v. First Bohemian Building & Loan Ass'n

Eschweiler, J.

By the written opinion of the trial court, upon which his order sustaining the demurrer was founded, he indicated that though there were defects quite visible in the complaint, yet they were such as should be more properly remedied by a motion to make more definite and certain rather than by demurrer, and by his order granted leave to the defendant to answer or to make such motion as it might be advised. Lawver v. Lynch, 191 Wis. 99, 210 N. W. 410.

Extending to this complaint, however, the extreme liberality nowadays required to be shown pleadings by statute (sec. 263.27) and by our decisions (Palmersheim v. Hertel, 179 Wis. 291, 299, 191 N. W. 567; July v. Adams, 178 Wis. 375, 378, 190 N. W. 89, and many others), nevertheless it falls short of stating a cause of action and gives another illustration of the possibly growing tendency to apparently rely upon the liberality of the court rather than upon the industry, care, and skill of a pleader, and thereby to often confuse the covering capacity of the mantle of liberality with that of the famed mantle of charity.

It is evident that the complaint was not framed under any theory of possible violation by defendant of the safe-place statute (sec. 101.06), made applicable to premises used by three or more tenants by sub. (12), sec. 101.01 (see Gobar v. Val. Blatz B. Co. 179 Wis. 256, 191 N. W. 509), and as held applicable in Kelenic v. Berndt, 185 Wis. 240, 201 N. W. 250, where defendant, landlord of such premises, was made responsible to one tenant of a four-family apartment building for injuries from a fall down a stairway not kept, lighted to comply with the rules, held to have statutory effect, of the industrial commission. Even under such statutory extension of the ordinary liability of landlord to tenant there still is none for the mere forming, by reason of climatic conditions, of ice on a platform, as is shown in Holcomb v. Szymczyk, 186 Wis. 99, 103, 202 N. W. 188. The holding in that case is also particularly important here in view of the fact that although the complaint before us alleges concealment by defendant from plaintiff of the defective condition of the drain pipe, there is no allegation that the slippery condition of the accumulation of ice and snow was concealed from plaintiff or not apparent to him upon the slightest inspection.

The complaint is barren of any express statements, and affords no means of reasonably presuming what the facts actually were as to whether the basement stairs were included in the portion of defendant’s premises rented to plaintiff; whether such stairs were for the common use of plaintiff and other tenants; whether the alleged backing of the water and overflowing by reason of a defect in the pipe was from the roof of the building or at or near the point of contact of the drain pipe with the stairs; the length of time any such defective condition either in the pipe or on the stairs had existed.

This court, unlike some of the others, is committed to the doctrine that there is no contract duty arising under the ordinary lease on the part of the landlord to keep in repair the stairs, hallways, or roof of a building when used in common by more than one tenant. Kuhn v. Sol. Heavenrich Co. 115 Wis. 447, 454, 91 N. W. 994, and the cases there cited, particularly Cole v. McKey, 66 Wis. 500, 29 N. W. 279.

It is evident, therefore, that there can be no right to recover against defendant spelled out from this complaint and based upon either statutory or contract obligation.

’ Neither can we find sufficient facts alleged upon which defendant could be required to go to trial upon some theory that it was being charged with some breach of some common-law duty on its part as landlord towards plaintiff as tenant.

Cases relied upon by respondent, such as Anderson v. Hayes, 101 Wis. 538, 543, 77 N. W. 891, where the defendant landlord, knowing of a concealed danger in an elevator cable, failed to inform, and Wertheimer v. Saunders, 95 Wis. 573, 70 N. W. 824, 37 L. R. A. 146, where the landlord, at the request of the tenant, undertakes to put on a new roof and fails to exercise ordinary care in so doing, is held liable on the same principle that any third person so contracting would be, are none of them controlling here.

Failing, therefore, to find a reasonable basis for construing the complaint as stating a cause of action against the defendant under any hypothesis based upon its allegations, the demurrer should have been sustained.

By the Court. — Order reversed.