Opinion
Rehearing Denied Aug. 18, 1943.
Hearing Granted Sept. 23, 1943.
Appeal from Superior Court, Los Angeles County; Benjamin J. Scheinman, Judge.
Action by Edith M. Ash against W. S. Mortensen and W. L. Mortensen for malpractice. Separate trials were had. Judgments for defendants, and plaintiff appeals.
Affirmed.
COUNSEL
George Penney, of Los Angeles, for appellants.
I. Charles Rubin, of Los Angeles, for respondent.
OPINION
SHINN, Acting Presiding Justice.
Plaintiff, tenant of a portion of a loft building owned by defendants, had judgment for damages to its stock of goods caused by rainfall after a fire which destroyed the roof that was above a part of the building not occupied by plaintiff, but did not destroy any portion of the premises occupied by plaintiff or the roof above the same. Defendants appeal.
The judgment rests upon the following finding, which followed substantially the allegation of the complaint: "That it is true that on or about the 4th day of January, 1941, defendants, and each of them, did suffer damage to said building due to a fire on a portion of said building occupied other than by the plaintiff herein, and that the said defendants, and each of them, thereafter failed and neglected to repair said damage to said building, and as a direct and proximate result of such negligence and failure upon the part of the defendants, and each of them, to make the necessary repairs to the damaged portion of said building, that on or about the 24th day of January, 1941, waters due to rain did seep through the walls and ceiling of said premises occupied by the plaintiff herein, causing damage to the plaintiff’s merchandise not in the amount of Two Thousand Nine Hundred Thirty-four and 29/100ths ($2,934.29) Dollars, but did sustain damages in the amount of One Thousand Seven Hundred Fifty ($1,750.00) Dollars." The theory of the action as pleaded and as disclosed by this finding is that there inhered in the relationship of landlord and tenant an implied covenant upon defendants’ part to repair the damage caused by the fire, that they did not repair it, and that by reason of their alleged breach of duty they became liable for the damage to plaintiff’s merchandise. This theory appears to be untenable.
Plaintiff was a tenant from month to month; there was no written lease and no contract imposing on the landlord the duty to restore or repair the leased premises or any part of the remainder of the building; there was no agreement for the restoration or repair of any part of the building that might be destroyed or damaged by fire. A landlord had no duty under the common law, in the absence of an express agreement, to make repairs to the demised premises. Farber v. Greenberg, 1929, 98 Cal.App. 675, 680, 277 P. 534; Wall Estate Co. v. Standard Box Co., 1912, 20 Cal.App. 311, 128 P. 1020; see cases collected in 15 Cal.Jur. p. 690; 36 C.J. 125; and 32 Am.Jur. § 657. Sections 1941 and 1942 of the Civil Code, under which a tenant may make use of the equivalent of a month’s rent after demand upon the landlord and his refusal to repair dilapidations rendering untenantable buildings intended for the occupation of human beings, have no application to the case, nor did plaintiff attempt to state a case under those sections. Wall Estate Co. v. Standard Box Co., supra; Callahan v. Loughran, 1894, 102 Cal. 476, 36 P. 835; Green v. Redding, 1891, 92 Cal. 548, 28 P. 599. Sections 1941 and 1942, being eliminated as inapplicable, there is no statutory law in this state imposing upon a landlord an obligation to his tenant to make repairs to the premises occupied by the tenant. Nor is there a duty imposed by statute or by implied contract which would require a landlord to restore or repair portions of his building which remain under his control after they have been damaged by fire. The judgment cannot be sustained upon the theory that the action is one for breach of contract, express or implied, or for the breach of a duty imposed by law.
Plaintiff tried its case upon the theory that there was liability for breach of an implied contract, and upon the appeal insists that it is such a case. Nevertheless, plaintiff relies upon cases which state the rule that if an owner leases a portion of his building and retains control of the remainder and if he does not exercise common care and prudence in the management and oversight of that portion of the building which belongs to his especial supervision and care, and damages are sustained by the tenant on that account, the landlord becomes liable for his negligence. H. C. Capwell Co. v. Blake, 1908, 9 Cal.App. 101, 111. 98 P. 51; Rathbun Co. v. Simmons, 1928, 90 Cal.App. 692, 266 P. 369. The rule has no application here, as there was no pleading or finding of negligence.
The complaint, as we have seen, alleged that defendants failed and neglected to repair the fire damage, but the evidence showed that defendants did repair the damage. The roof had been destroyed over an area of 80 by 94 feet; this was inspected on the day of the fire, temporary roof bracings were installed and the area was covered with waterproof canvas, the work being completed on the afternoon of the following day. Permanent repairs were commenced about three weeks later and the work was soon completed. The canvas was securely fastened and the evidence was that this temporary method of protecting against weather was practical and customary. Rain came and in some manner entered plaintiff’s premises, but this fact alone did not establish a case for damages. It was not alleged that the fire was started through any fault of defendants or that there was any unreasonable delay in making the repairs or any negligence in anything that was done or omitted in restoring the premises to their former condition. Upon the complaint and the findings the judgment would be sustainable only upon the theory that defendants were for some reason in the position of insurers of plaintiff against damage to his merchandise resulting from fire and rainfall, but there is no such basis of liability. If plaintiff had a cause of action at all, it was for negligence. Defendants took this position throughout the trial and produced evidence tending to prove that the repairs were promptly and properly made, but we cannot find that plaintiff conceded at the trial that negligence was an issue. Upon the appeal plaintiff does not contend that it attempted to prove or did prove negligence. Defendants’ general demurrer to the complaint should have been sustained. The complaint states no cause of action for damages and the findings do not support the judgment.
The judgment is reversed with direction to sustain the demurrer to the complaint.
PARKER WOOD, J., and BISHOP, J. pro tem., concur.