Burrowes v. Bosworth

This is an appeal by the plaintiff from a judgment on the pleadings entered upon motion of the defendant and respondent Eliza Hyde. The only question involved upon the appeal is: Does the,complaint state facts sufficient to constitute a cause of action against the respondent?

The complaint alleged that the respondent “is now and was at all times herein mentioned, the owner of that certain tenement house ... in the city of Oakland” more particularly described in the complaint; “that the defendant, Josephine Bosworth, was at all of the times herein mentioned the lessee and in possession of said tenement house, as such lessee; that at the time of the accident complained of, plaintiff was an occupant of one room in said tenement house rented of the lessee by H. Polglase; that in connection with the rooms of said apartment upon the first floor thereof a

Plaintiff then set forth her special items of damage, and prayed for general and special damages in the sum of $25,380.

To establish negligence the plaintiff relies upon the violation of certain provisions of an act known as the “State Housing Act” (Stats. 1921, c. 354, p. 485, sec. 66), wherein it is provided: “In every tenement house or hotel there shall be installed and kept burning from sunrise to sunset throughout the year artificial light sufficient in volume to properly illuminate every public hallway, public stairway, fire escape egress, elevator, public water-closet compartment, or toilet room, whenever there is insufficient natural light to permit a person to read in any part thereof.”

[1] It is apparent from the foregoing, that the only allegations against the respondent are that she was the owner of the tenement house at the time of the accident and, thereafter, to the date of the commencement of the action, and that the plaintiff’s injuries were caused by the carelessness and negligence of defendants in this, that “the said hallway, toilet room and stairway, at the time of said accident were and each of them was unlighted by any means and they were, and each of them was, dark.”

Appellant relies upon the case of Rider v. Clark, 132 Cal. 382 [ 64 Pac. 564 ], and asserts that the landlord is liable (1) when the nuisance occasioning the injury existed at the time the premises were demised, or (2) when the structure was in such a condition that it would be likely to become a nuisance in the ordinary and reasonable use of the same for the purpose for which it was constructed, and the landlord failed to repair it, or (3) when the landlord authorized or permitted the act which caused it to become a nuisance occasioning the injury. Under these rules, relied upon by the appellant, she has failed to charge the landlord. She has not alleged that the premises were not equipped with lights, but merely that certain portions thereof were “unlighted and dark,” which might have been true because existing lights were not lighted. She has not alleged that the respondent was in possession of the premises at the time of the accident, either exclusively or jointly with her tenant, but, on the contrary, has alleged that the tenant was in possession. There is no allegation that the unlighted and dark condition of the premises existed at the date of the lease, or that the respondent was the owner at the date of the lease. There is no allegation that the respondent, by the terms of the lease, was required to equip the premises with lights or to keep them lighted.

We think that under no possible theory has the plaintiff stated a cause of action against the respondent. We are not at liberty to indulge in inferences regarding evidence which might have been produced, nor strain the language of the pleading to the advantage of appellant. [2] In the lan

The judgment appealed from is affirmed.

Nourse, J., and Sturtevant, J., concurred.