To charge appellants with liability for the fall of the building, it was necessary to prove, not only that the third floor was overloaded by them, but that they were informed of its carrying capacity, or had notice of facts which would have deterred a reasonable and prudent man from placing thereon as much malt as they had stored there. There was evidence tending to prove the building poorly constructed, and from that evidence the jury had the right to infer, if they saw fit, that the building fell because of its ill construction, arid that it would not have fallen had it been, in fact, such a building as its appearance indicated. It was also a question for the jury (if they found the building was badly constructed) whether Sheer & Lynch had notice of the poor character of the building. Yet they were informed by the third instruction given for the plaintiff that if Sheer & Lynch unreasonably overloaded the floor in their possession, taking into consideration the nature and character of the building, and that thereby the floor and roof, etc.? of the building were broken and injured, they should find them guilty. This, in effect, makes them liable for damages that may have been caused by inherent weakness, or unsound material used in erecting the building (whether they had notice thereof or not), though the weight deposited on the floor may have been such as the apparent character . of the building would have led them to believe entirely safe. The instruction having ignored the question of notice, was erroneous.
The sixth instruction asked by the defendants should have been given as asked. The court erred in inserting therein the objectionable words composing a part of the plaintiff’s third instruction, upon which we have alread)r commented.
The fifth instruction, in the form requested by the defendants, might have been refused by the court, because the jury would thereby have been told that the plaintiff could not recover unless the loading of the third floor by Sheer & Lynch was the immediate and direct cause of the fall. If they had negligently overloaded the third floor, so that a very moderate and proper load afterward placed on the second floor by plaintiff, without notice of danger, caused the building to fall, the defendants would be liable for the injury, although its immediate and direct cause was the proper load thus placed on the second floor. But the addition made by the court to this instruction made it necessary to a successful defense, not only that the injury to the building was due to other causes than overloading by Sheer & Lynch, hut that they should also believe affirmatively that such injury was not due to their negligence in overloading. The effect of this addition was to impose upon the defendants a burden which the law does not require them to bear. It is enough for their defense that the evidence should show that the building fell from causes other than their overloading, and that it should fail to show that it was caused by their negligence in overloading. But the instruction as given required the evidence to show affirmatively that the fall was not due to the negligence of Sheer & Lynch, which is a materially different thing from the failure of the evidence to show their negligence. And this is a fatal error, although the instruction as requested by the defendants was erroneous. The court should have refused it, instead of placing it before the jury with an additional and unjust burden laid upon the defendants, which they had not volunteered to assume.
The counsel for appellants has argued, at some length, two other propositions, viz.: (1) The fault of appellee in tumbling bales of hay upon the first and second floors; (2) the liability of appellants for any overloading of the fourth floor that may have been done by Mueller Brothers; and it is taken for granted that these questions were fairly presented to the jury by the eighth and ninth instructions asked on behalf of appellants. They had the right to have submitted to the jury the question whether the plaintiff, or her agent, had exercised due care and caution in loading the building. This involved not only the weights actually placed by her, or her agent, on the other floors of the building, but the manner of placing them there. A hundred bales of hay might have been safely wheeled or hoisted into the first and second stories of the building if carefully, and cautiously done, while recklessly throwing them from a wagon upon the first floor, or from a hoisting apparatus upon the second floor, might have caused the very damage of which the plaintiff now complains. As we have shown in the statement of facts, there was evidence tending to prove that plaintiff’s bales of hay were' recklessly and violently thrown upon the first and second floors, and the defendants may have the attention of the jury drawn to this feature of-the case by a proper instruction on the question of negligence and comparative negligence.
Then appellants claim that the overloading, if there was any, was done either by plaintiff or Mueller Brothers. The renting to Mueller Brothers was about a month after the lease to appellants, and after August Fisher saw more malt on the premises of Sheer & Lynch than he thought there ought to be. He was the plaintiff’s agent in these transactions with appellants and Mueller .Brothers, and she is chargeable with such knowledge as he had, at the several times, in respect to the building and its occupation. The renting to Mueller Brothers would seem to have been influenced by the desire to make the premises, bring more rent, although he then believed the third floor overloaded. Mo doubt a landlord may prudently and reasonably rent to different persons separate parts of the same building, but if he should so let his building it is manifest that the first tenant is mot responsible for the acts of the others in the use of the premises rented by the latter. The negligent act of the latter tenant in the use of said premises is not the act of the landlord (as implied by the eighth and ninth instructions), as the offending tenant is not the agent of the landlord. These two questions the defendants are entitled to have presented to the jury by proper instructions, but they were not so presented by the eighth and ninth instructions, or by any other.
The first instruction given for plaintiff contains a naked proposition of law which is not sound, and the first sentence of the second a supposition which is mot sound in its application to the facts of this case. A tenant is not absolutely liable for causing a permanent injury to the demised premises over and above ordinary wear and tear, as stated in the first instruction; such injury must be caused by some wrongful act or negligence of the defendant before he can be made to respond in damages. Mor was the renting to Sheer & Lynch a simple renting, as the jury might infer from the second instruction. Both the witnesses who testified for plaintiff as to the renting, stated that the purpose for which the premises were leased was spoken of when the lease was made. What influence, if any, these two instructions may have had in misleading the jury, we are unable to say, nor do we say that the judgment should be reversed if these were the only errors in the record; but we think these two instructions should not have been submitted without alterations to make the first conform to the law, and the second to the facts of this case. Whether the renting of premises for a particular purpose, known to the landlord when the lease is made, will or will not raise an implied warranty that they are suitable for that purpose, is not the question. The tenant is not seeking to recover damages from the landlord for breach of an implied warranty, but alleges, as a defense to the landlord’s action, that he was led to think the building was strong enough for the purpose for which he used the demised premises. If the jury thought the alleged representation by Fisher was not made by him, they might still have found that such belief by appellants was justifiable, if no warning was giving as to the amount of malt that could be safely stored on the floor rented to appellants.
The judgment is reversed and the case remanded.
Reversed and remanded,