We agree. Respondent herself correctly points out that the roof of a multiple dwelling is a portion of the premises reserved to the landlord ( Smelser v. Deutsche Evangelische, etc. Kirche (1928), 88 Cal.App. 469, 474 [ 263 P. 838]), but contends that the stairway was under the exclusive control of appellant. Were this the case, it would be necessary for respondent to obtain appellant's permission in order to ascend the stairs and thus use the ladder for the purpose of roof repairs.
That no tortious liability can be imposed upon a defendant even though he was negligent, unless there was a duty of care owed by defendant to plaintiff, was the holding in DeMotte v. Arkell, 77 Cal.App. 610, 621 [ 247 P. 254]; Coleman v. California etc. Church, 27 Cal.App.2d 579 [ 81 P.2d 469]; Toomey v. Southern Pacific R.R. Co., 86 Cal. 374 [24 P. 1074, 10 L.R.A. 139]; Grundel v. Union Iron Works, 141 Cal. 564, 566, 567 [ 75 P. 184]; Leslie v. City of Monterey, 139 Cal.App. 715, 719, 720 [ 34 P.2d 837]; Hall v. Southern Cal. Edison Co., Ltd., 137 Cal.App. 449, 452, 453 [ 30 P.2d 1013]; Slyter v. Clinton Construction Co., 107 Cal.App. 348, 353 [ 290 P. 643]; Jacobson v. Northwestern Pac. R.R. Co., 175 Cal. 468, 472 [ 166 P. 3]; Smelser v. Deutsche Evangelische, etc., 88 Cal.App. 469, 475, 476 [ 263 P. 838]. [2] Let us assume, as contended by appellant, that respondents were at all times aware of the careless and negligent manner in which Noll, the tenant, was conducting his business on the premises, and of the dangerous condition thereby created, of what existing dangers were respondents required to warn appellant of she was not cognizant and which were not readily apparent to her?
[1] The primary purpose of the roof of a building is to shelter it and all of its occupants, and consequently, other than for purposes of shelter the tenants are given no easement thereover, as appurtenant to their tenancies, unless their rights be extended by agreement with or license from the owner. ( Smelser v. Deutsche Evangelische, etc., 88 Cal.App. 469, 474 [ 263 P. 838]. Indeed, appellants do not question this principle of law but contend that under the lease and the conduct of the parties thereunder at least that portion of the roof upon which the apartment house patrons were privileged to hang their laundry was embraced within the demised premises, and as such was under the exclusive control of the lessee.
[1] It is a well-settled principle of law that negligence can exist only if there is some duty or obligation, which must be performed by the party charged with negligence in favor of the injured party. ( Schmidt v. Bauer, 80 Cal. 565, 568 [22 P. 256, 5 L.R.A. 580]; Jacobson v. Northwestern Pac. R. Co., 175 Cal. 468, 472 [ 166 P. 3]; Smelser v. Deutsche Evangelische, etc., 88 Cal.App. 469, 475 [ 263 P. 838].) Moreover, the party charged with lack of due care cannot be said to have been negligent as to the injured party unless it appears that the party charged with negligence owed to the injured party a duty of care.
In giving consideration to this contention, it should be observed at the outset that the primary question presented is whether, in view of the establishment of the above-mentioned facts, the Edison Company could, as a matter of law, be guilty of negligence. [2] It is fundamental that negligence can exist only if there is some duty or obligation which must be performed by the party charged with negligence in favor of the injured party ( Schmidt v. Bauer, 80 Cal. 565, 568 [22 P. 256, 5 L.R.A. 280]; Jacobson v. Northwestern Pacific R.R. Co., 175 Cal. 468, 472 [ 166 P. 3]; Smelser v. Deutsche Evangelische, etc., 88 Cal.App. 469, 475 [ 263 P. 838]). In other words, the party charged with lack of due care cannot be said to be negligent as to the injured party unless it appears that the party charged owed to the injured party a duty of care ( Dahms v. General Elevator Co., 214 Cal. 733, 737 [ 7 P.2d 1013]).
The condition of the bond follows the language of the undertaking required to be filed under section 1 of such act, even to the provision of "a reasonable attorney's fee to be fixed by the court" in case suit is brought thereon, and is made by its terms "to inure to the benefit of any and all persons, companies and corporations" entitled to file claims under the act. [1] No question remains, after reading the act and the bond, as to the instrument being a bond given in compliance with the requirements of the act. It is true the complaint does not allege that the penalty of the bond is "in a sum not less than one-half of the total amount payable by the terms of the contract", but we may certainly assume that the pleader would so have alleged if anything appearing on the face of the undertaking was not in conformity with the act, and "it must be presumed that the pleader stated his case in the most favorable manner to himself" ( Smelser v. Deutsche etc. Kirche, 88 Cal.App. 469, 473 [ 263 P. 838, 839]). [2] Section 2 of the act referred to provides in substance that suit on the bond may be brought "at any time after the claimant has ceased to perform labor or furnish material, or both, and until the expiration of six months after the period in which verified claims may be filed as provided herein".
This qualification, however, does not apply unless the injury occurred while the injured party was putting the unsafe portion of the premises to a use reasonably intended. ( Smelser v. Deutsche Evangelische, etc., 8 Cal.App. 469, 475 [ 263 P. 838]; De Motte v. Arkell, 77 Cal.App. 610, 626 [ 247 P. 254]; Shellman v. Hershey, 31 Cal.App. 641, 650 [ 161 P. 132]; Durkin v. Marshall Field Co., 161 Ill. App. 505; Glain v. Sparandeo, 119 La. 339 [44 So. 120]; Orcutt v. Kittery Point Bridge Co., 53 Me. 500; Stickney v. City of Salem, 3 Allen (Mass.), 374; Eisenhauer v. Ceppi, 238 Mass. 458 [ 131 N.E. 184]; Kinney v. Onsted, 113 Mich. 96 [67 Am. St. Rep. 455, 38 L.R.A. 665, 71 N.W. 482]; Kelley v. Lawrence, 195 Mo. 75 [92 S.W. 1158]; Walsh v. Frey, 116 App. Div. 527 [101 N.Y. Supp. 774]; Kucera v. Grigsby, 24 Ohio App. 457 [ 156 N.E. 249]; Gavin v. O'Connor, 99 N.J.L. 162 [30 A.L.R. 1383, 122 A. 842]; Robinson v. Leighton, 122 Me. 309 [30 A.L.R. 1386, 119 A. 809]; Landers v. Brooks, 258 Mass. 1 [49 A.L.R. 562, 154 N.E. 265].
Discussion of these rules in their relation to liability for injury suffered through collapse of a railing is to be found in De Motte v. Arkell, 77 Cal.App. 610, 621 [ 247 P. 254], and Hassell v. Denning, 84 Cal.App. 479, 481, 482 [ 258 P. 426]. For a general exposition of the law on the subject, reference may be made, also, to Daley v. Quick, 99 Cal. 179, 183 [33 P. 859]; Smelser v. Deutsche Kirche, 88 Cal.App. 469, 473 [ 263 P. 838]; Nelson v. Myers, 94 Cal.App. 66 [ 270 P. 719]; Farber v. Greenberg, 98 Cal.App. 675 [ 277 P. 534]. [6] Throughout the trial the plaintiffs were insistent in impressing upon the judge and the jury that the defect in the railing was so effectually concealed beneath the bark as to escape their notice; and there being no evidence before the court to charge Mrs. Wright with notice any more than the plaintiffs themselves, she was exempt from liability and entitled to a verdict at the direction of the court.
[1] The rule is well settled that at common law, in the absence of fraud, concealment or an express covenant in the lease, there was no duty owing from the landlord to the tenant to make repairs, and consequently no liability was incurred by the landlord to the tenant arising from the defective condition of the leased premises. ( Priver v. Young, 62 Cal.App. 405 [ 216 P. 966]; Brewster v. De Fremery, 33 Cal. 341; Van Every v. Ogg, 59 Cal. 565; Sieber v. Blanc, 76 Cal. 173 [18 P. 260]; Wilson v. Treadwell, 81 Cal. 58 [22 P. 304]; Daley v. Quick, 99 Cal. 181 [33 P. 859]; Grazer v. Flanagan, 35 Cal.App. 724 [ 170 P. 1076]; Callahan v. Loughran, 102 Cal. 476 [36 P. 835]; Gately v. Campbell, 124 Cal. 520 [57 P. 567]; DeMotte v. Arkell, 77 Cal.App. 610 [ 247 P. 254]; Carty v. Blauth, 169 Cal. 713 [ 147 P. 949]; 15 Cal. Jur. 704; Smelser v. Deutsche etc. Kirche, 88 Cal.App. 469 [ 263 P. 838]; Nelson v. Myers, 94 Cal.App. 66 [ 270 P. 719].) In Grazer v. Flanagan, supra, the court said: "At common law a lessor is not liable to make repairs to a structure rented as a dwelling house unless by force of an express contract or covenant; the tenant takes the premises for better or worse, and cannot involve the landlord in expense for repairs without his consent."
pairing them amounts to less than one month's rent of the premises, regardless of a landlord's covenant to repair, the only remedy which the lessee has for the landlord's failure to repair is to either vacate the premises or make the repairs and charge the expense to the rent account pursuant to section 1942 of the Civil Code. [8] It is the settled law of this state that in the absence of fraud or deceit on the part of the landlord in concealing latent defects of which he has knowledge, and in the absence of a direct covenant to make repairs, the lessor is not liable to the tenant or others for injuries resulting from defects in the rented premises. (15 Cal. Jur. 704; 16 R.C.L. 1059, sec. 580; 1 Tiffany on Landlord and Tenant, 556, secs. 86, 87; Carty v. Blauth, 169 Cal. 713, 716 [ 147 P. 949]; Gately v. Campbell, 124 Cal. 520 [57 P. 567]; Daley v. Quick, 99 Cal. 179 [33 P. 859]; De Motte v. Arkell, 77 Cal.App. 610, 621 [ 247 P. 254]; Hassell v. Denning, 84 Cal.App. 479 [ 258 P. 426]; Smelser v. Deutsche etc. Kirche, 88 Cal.App. 469 [ 263 P. 838].) [9] A landlord is not an insurer of his demised premises against damages or injuries.