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BOYD v. SMITH (01/05/53)

January 5, 1953

BOYD
v.
SMITH, APPELLANT



Appeals, Nos. 287 and 288, Jan. T., 1952, from judgment of Court of Common Pleas No. 1 of Philadelphia County, March T., 1950, No. 2530, in case of Norman Boyd et ux. v. Joseph Smith, Esq., Exr., Estate of Gus Besterman, deceased. Judgment affirmed.

COUNSEL

Henry S. Ambler, with him Frank R. Ambler, for appellant.

Carlyle M. Tucker, with him Theodore Spaulding and James K. Baker, for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Stern

[ 372 Pa. Page 307]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

The decision in this case turns upon the question of the validity of a clause in a lease relieving the lessor from liability by reason of injury to any person in the demised premises resulting from the lessor's negligence.

The original defendant, Gus Besterman, was the owner of premises 1530 N. 19th Street, Philadelphia. This was a three story building, containing two apartments on each floor, which were rented to tenants. It was unquestionably a tenement within the meaning of the Act of June 3, 1915, P.L. 954, section 4, which defines that term as "any house or building which, or a portion of which, is occupied as a residence by three or more families, living independently of each other, and doing their cooking on the premises, and having a common right in the halls, stairways, yard, cellar, or water-closets thereof, or some of them." That same act provides, section 35, that "No building of any of the grades referred to in this act shall be used for human habitation unless it is equipped with a fire-escape

[ 372 Pa. Page 308]

    or fire-escapes as required by law: Provided, That any building of such grades having less than four (4) stories, and used as a rooming-house or tenement, the third story of which shall contain not more than five (5) rooms and a bath-room, and such third story is not occupied by more than ten (10) persons, and has at least one stairway therefrom, shall be exempt from the provisions of the acts of Assembly requiring fire-towers and outside fire-escapes for such buildings, if every apartment above the second floor in any of said buildings shall be equipped with a satisfactory wire, chain, or other safe fire-escape." Section 48 of the act imposes a penalty of fine or imprisonment or both for violation of any of the provisions of the act.

Besterman did not equip his property with any wire, chain, or other safe fire-escape.

Plaintiffs, Mr. and Mrs. Boyd, occupied the third floor front of the premises under a written lease which contained the following clause: "Lessee agrees to be responsible for and to relieve and hereby relieves the Lessor from all liability by reason of any injury or damage to any person or property in the demised premises,... caused by any fire, breakage or leakage in any part or portion of the demised premises, or any part or portion of the building of which the demised premises is a part... whether such breakage, leakage, injury or damage be caused by or result from the negligence of Lessor or its servants or agents or any person or persons whatsoever."

On the morning of March 25, 1949 a fire broke out in the second floor rear of the building and as it mounted in intensity the flames rose through the stairway and halls and came into the Boyd apartment. Mrs. Boyd was there at the time with her ...


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