Appeal, No. 198, Jan. T., 1956, from judgment of Court of Common Pleas No. 3 of Philadelphia County, March T., 1954, No. 4934, in case of William L. Matthews v. Morris Spiegel, Louise Spiegel and Leon W. Chesler. Judgment affirmed.
Michael Shekmar, with him Max E. Cohen, for appellants.
David Kanner, for appellee.
Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
Defendants are the owners of a tenement house at 805 W. Norris Street in the City of Philadelphia. It contains an apartment on each of its three stories and under the first floor apartment is a basement or cellar with an entrance leading from that apartment only.
The tenant of the first floor was one Savannah Simpson. While her lease made no mention of a right to use the cellar for any purpose she testified that defendants had given her such a right and accordingly she stored some of her personal belongings and hung clothes there. The janitor of the building, employed by defendants, confirmed her statement that this claimed right had been given her.
On July 4, 1953, an odor seeped into the first floor apartment due to some defective plumbing in the cellar. She asked her cousin, William L. Matthews, the plaintiff herein, who was visiting her for dinner, to take a can of disinfectant which the janitor had given her for the purpose, and spread it around the cellar in order to counteract the stench. In descending the stairway he fell on one of the steps the tread of which was defective, a condition, however, which could not be seen in walking down the stairs. The janitor testified that he had reported the defect a month before to one of the defendants, telling him "it needed fixing or somebody going to fall and get hurt," but it was not repaired even up to the time of the trial of the action more than two years later. Plaintiff's suit was to recover damages for his injuries. The jury returned a verdict in his favor in the sum of $2,598.50. The court refused defendants' motions for judgment n.o.v. and for a new trial, from which refusal they now appeal.
The motion for judgment n.o.v. was based on defendants' contention that they owed no duty to plaintiff to have the stairway in repair, but they overlook the fact that they had been informed of the defective condition of the stairway and had failed either to repair it or to notify their tenant of the likely danger arising therefrom. It is true that the lessee was, as to the stairway, neither a "business visitor" nor an "invitee," but merely, in the eye of the law, a "gratuitous licensee."
This is because the right given her to use the cellar, not being a term of the lease itself, was solely for her own accommodation, benefit and convenience, and not in any way for the benefit of the lessors; there was no mutuality of interest. It is also true that, whereas the duty of a lessor to an invitee or business visitor is to exercise reasonable care to maintain the premises in safe condition, his only duty to a licensee is to refrain from wilfully or wantonly injuring him; he is under no liability to keep the premises in repair for the benefit of such licensee: Parsons v. Drake, 347 Pa. 247, 249, 250, 32 A.2d 27, 29. But there are two qualifications of this general rule of law, one, - which does not apply to this case - that the lessor is liable for injury occasioned by any affirmative or active negligence on his part in connection with activities conducted on the premises: Potter Title and Trust Company v. Young, 367 Pa. 239, 244, 80 A.2d 76, 79; the other, which does apply, that he is likewise liable for injury arising from a latent defect in the premises of which he has knowledge and of which he fails to inform the licensee: Rushton v. Winters, 331 Pa. 78, 80, 200 A. 60, 61; Bowser v. Artman, 363 Pa. 388, 391, 69 A.2d 836, 837.In § 342 of the Restatement of Torts it is said that "A possessor of land is subject to liability for bodily harm caused to gratuitous licensees by a natural or artificial condition thereon if, but only if, he (a) knows of the condition and realizes that it involves an unreasonable risk to them ...