(dissenting).
There was as I view the record an erroneous submission of the case to the jury and an utter failure of proof on the part of the plaintiff requiring a reversal.
*164While the common law makes a landlord who rents separate parts oí his premises to different tenants liable to them for failure to exercise ordinary care to keep safe those parts over which he retains control for their common use, yet the proof should satisfactorily show that the landlord has been guilty of negligence in that regard and establish with reasonable certainty the fact that the injury complained of was the result of such conduct. It is the burden of the tenant to show that the landlord knew of the defect or that it had existed for such length of time before the injury as to charge him with notice and to have afforded him an opportunity to make inspection and repair. 32 Am.Jur., Landlord & Tenant, § 694.
At the time of the fire occurring on January 2, 1966, plaintiff and her family occupied the upstairs of a duplex which defendant purchased in August 1964. The two storerooms in the basement were adjacent to the chimney which was a part of a wall between the rooms. The tenants kept storm windows, screens and awnings for their apartments in their respective storerooms. There is evidence that plaintiff's husband had on occasions been in the storeroom "to take screens out and storms back" and did not see any defect in the chimney. The defective condition could have been as easily discovered by plaintiff or a member of her family as by defendant.
The realtor who negotiated sale of the duplex to defendant testified: "Q. How many occasions would you say you were in there? A. Approximately fifteen, sixteen times. Q. Were those occasions when you were showing it to prospective buyers? A. Yes, sir. * * * Q. During those occasions when you were in there, did you inspect the property? A. Yes, sir. Q. Do you recall seeing this particular chimney that we have been talking about in this lawsuit? A. Yes, sir. Q. During the times you were down there in that basement and you saw that chimney, did you see any loose mortar or bricks on that chimney? A. No, sir."
The assistant fire chief who was at the scene of the fire shortly after an alarm was sounded and made an investigation *165testified on cross-examination as follows: "Q. Now, Mr. Telling-huisen, as you looked at that chimney and as you looked at that hole which shows there in Exhibit Number 2, was there any way that you could determine how long that hole had been there? A. No. I don't know. It could have been there for a day, two weeks or years. I don't know. * * * Q. Except for that hole there did all of the rest of the chimney appear to you to be in good condition? A. Yes."
There is no pretense that defendant had actual knowledge of the defect in the chimney. There is no evidence to indicate that defendant had any notice of the defect and no evidence as to how long the defect had existed. The facts are not inconsistent with the theory that the hole in the chimney was caused when plaintiff's husband was taking storm windows in or out of the storeroom.
It is of course elementary that a jury may not be denied the right to draw reasonable inferences. An inference can be drawn only from facts in evidence or from something which is known to be true. It cannot be based on surmise, speculation or conjecture. Gilger v. Montgomery Lumber Co., 73 S.D. 599, 47 N.W.2d 281. A jury cannot draw an inference merely because facts necessary for recovery are beyond the scope of possible evidence. As already observed there is no evidence of how long before the fire the defect in the chimney had existed. The majority concludes that Exhibit No. 2, which is a photograph showing the defective condition after the fire, tends to show that the defect was not of recent origin and that the defective condition had existed for such length of time that defendant should have known of it affording him opportunity to inspect and repair the chimney. There is nothing in the photograph indicative of the length of time that the defect had existed. The asserted inference is contrary to the positive and uncontradicted testimony of the assistant fire chief. The probative effect of the exhibit in question and evidence otherwise in the case are not in my opinion sufficient to warrant the inference.
*166No doubt the jury was misled by an erroneous submission of the case. Plaintiff contends that there was a failure on the part of the defendant landlord to comply with duties imposed by statute and ordinances in reference to the care of the premises which constituted actionable negligence on his part. Plaintiff states in her brief that "[I]n the City of Sioux Falls both the Fire Prevention Code and the Building Code establish a duty of care and a class of persons to be protected (quoting provisions of city ordinances). * * * It is also the obvious intent of the explicit language of SDC 38.0409 to protect the class of persons that reside in dwellings as tenants. * * * The statutes provide that the owner — in this instance, the landlord — has the clear duty owing to the tenants, to maintain the chimney in such a manner as to not create a hazardous condition. * * * The course of conduct of the defendant thus brings him under the umbrella of the concept of negligence per se for violation of a duty imposed by criminal statute that is the proximate cause of the damage to the plaintiff. The defendant failed properly to maintain the chimney.''
Defendant excepted to the giving of instructions requested by plaintiff 'submitting to the jury this theory of the case. The court quoted in his instructions verbatim the provisions of SDC 38.0409 which provides: "The lessor of a building intended for the occupation of human beings must, in the absence of an agreement to the contrary, put into a condition fit for such occupation, and repair all subsequent dilapidations thereof except that the lessee must repair all deteriorations or injuries thereto occasioned by his ordinary negligence."
A companion and succeeding section, SDC 38.0410, provides that if the lessor fails after notice to repair then the lessee may repair and deduct the expense thereof from rent or vacate the premises. The same or similar statutes have been construed in other states. The California court has consistently adhered to the construction that the only consequence of the breach of the landlord's obligation is that the tenant may either vacate or after notice repair and that the statutes are not to be extended by implication to alter the common law and provide redress in *167damages for injuries to person or property because of the failure of the landlord to comply with the statutory requirements. Van Every v. Ogg, 59 Cal. 563; Sieber v. Blanc, 76 Cal. 173, 18 P. 260; Grazer v. Flanagan, 35 Cal.App. 724, 170 P. 1076; see also Dier v. Mueller, 53 Mont. 288, 163 P. 466; Lavery v. Brigance, 122 Okl. 31, 242 P. 239; Newman v. Sears, Roebuck & Co., 77 N.D. 466, 43 N.W.2d 411, 17 A.L.R.2d 694. The instruction premised upon the provisions of section 38.0409 related to a fundamental and controlling principle.
The court also quoted in its instructions and submitted for the consideration of the jury the provisions of Section 104(h) of the Building Code and Section 28.12 of the Fire Prevention Code of the City of Sioux Falls. I would hold that these ordinances requiring the owners of buildings and structures within the city to maintain them in a safe and sanitary condition and to construct and maintain chimneys so as not to create a hazardous condition, if within the municipal authority, are not to be construed as modifying settled common law rules relating to the liability of landlords for injury due to defects in rented premises. Palmigiani v. D'Argenio, 234 Mass. 434, 125 N.E. 592; Johnson v. Carter, 218 Iowa 587, 255 N.W. 864, 93 A.L.R. 774; Tair v. Rock Inv. Co., 139 Ohio St. 629, 41 N.E.2d 867; Restatement of Torts, § 286, Comment c.
There is attached to the transcript separate assignments predicating errors to the giving of the instructions in question and referring to the pages of the transcript where the alleged errors appear. SDC 1960 Supp. 33.0735. Respondent does not claim that the objections to the giving of the instructions were not sufficiently specific, but joins in fully briefing and arguing the questions presented. The record thus enabled counsel for the respondent to argue the propriety of the instructions. The failure to assign error has been held not to require dismissal where there was no question as to the exact error complained of. Western Surety Company v. Schroeder, 45 S.D. 115, 186 N.W. 562. In accordance with the rule stated in 5 C.J.S. Appeal and Error §§ 1238, 1239 an appellate court may in the interest of justice consider fundamental or basic errors apparent upon *168the face of the record even though they have not been specifically assigned. The court sustains recovery on the basis of common law liability. The instructions if understood by the jury in the sense urged upon this court and no doubt argued below could have been determinative of the outcome. The judgment should in my opinion be reversed and a new trial granted.
RENTTO, J., concurs in dissent.