Wagner v. Kepler

• Decision Date: 27 November 1951
• Docket Number: No. 31910,31910
• Citation: 104 N.E.2d 231,411 Ill. 368
• Parties: WAGNER v. KEPLER.
• Court: Illinois Supreme Court

Page 231

104 N.E.2d 231

411 Ill. 368

WAGNER v. KEPLER.

No. 31910.

Supreme Court of Illinois.

Nov. 27, 1951.

Rehearing Denied March 17, 1952.

Delmar J. Hill and Harry Teune, both of Chicago, for appellant.

Samuel Levin, of Chicago, for appellee.

SCHAEFER, Justice.

The plaintiff, Gregory Wagner, a minor, by John Wagner, his father brought an action in the circuit court of Cook County against the defendant, John F. Kepler, for injuries sustained when, as the result of an allegedly defective handrail, he fell from a landing on the rear staircase of a building owned by defendant. A jury trial resulted in a verdict for plaintiff for $5000 and judgment was entered on the verdict. The Appellate Court for the First District reversed the judgment, without remanding the cause. We have granted plaintiff's petition for leave to appeal.

Defendant owns a two-story building in Chicago containing two apartments, one on each floor. Plaintiff lived in the first-floor apartment. On October 1, 1944, or on April 1, 1945, the date being disputed, defendant rented the second-floor apartment to Howard Haines on a month-to-month tenancy. This apartment has a separate rear staircase which originates in the back yard, abuts the rear wall of the building on one side, and consists of seven steps leading to a small landing adjoining the rear entrance to the second-floor apartment. Both the side of the staircase away from the building and the two exposed sides of the landing are protected by a wooden railing.

Plaintiff and other children often played on the staircase and landing. Defendant visited the property frequently. On July 15, 1945, plaintiff, then three and one-half years of age, was playing on the landing, when the railing broke and he fell six feet to the sidewalk. The evidence tended to show the railing had rotted at the point where it joined the building. As to the condition of the railing prior to the accident, the evidence is directly conflicting. Haines testified it was firm and sturdy. One of plaintiff's brothers stated it had been wobbly since August, 1944, but, on defendant's objection, this testimony was stricken as being too remote. Later, the same witness testified, without objection, that the railing had been shaky since July, 1944.

The case was submitted to the jury on a count charging that at the time of the leasing of the second-floor apartment to Haines, defendant knew or in the exercise of reasonable care ought to have known that the railing was in a dangerous condition and that children of tender years frequently played on the landing and would continue to do so. Liability was thus predicated upon the theory that defendant leased the second-floor apartment to Haines with an existing dangerous defect. Plaintiff has at all times expressly disclaimed the application of the attractive nuisance doctrine. The trial judge held that a month-to-month tenancy is, in contemplation of law, a new demise at the beginning of each month and the jurors were so instructed. As a result, the principal questions presented to the jury were whether the railing involved was defective on July 1, 1945, and whether defendant knew, or should have known, of this condition. The Appellate Court reversed, holding that a month-to-month tenancy does not constitute a reletting at the beginning of each successive month and that there was no evidence tending to show that the alleged dangerous condition existed at the time of the original letting of the second-floor apartment.

To reverse the judgment of the Appellate Court, plaintiff contends that in a tenancy from month to month there is a new letting at the beginning of each month and that, in any event, there was evidence that the defect existed at the time of the original letting of the second-floor apartment. Defendant adds the contention that the judgment of the Appellate Court should be affirmed because plaintiff has no cause of action. The nature of this contention requires that it be considered first. While defects in a complaint containing an incomplete or otherwise insufficient statement of a good cause of action may be waived, the question of whether a complaint absolutely fails to state or indicate any ground of liability which the law will recognize can be raised at any time. Lasko v. Meier, 394 Ill. 71, 67 N.E.2d 162; Owens-Illinois Glass Co. v. McKibbin, 385 Ill. 245, 52 N.E.2d 177.

Ordinarily, in the absence of an agreement to the contrary, the lessee and not the owner of a building is liable for injuries received by third persons as the result of a failure to keep the building in repair. Murphy v. Illinois State Trust Co. 375 Ill. 310, 31 N.E.2d 305; Marcovitz v. Hergenrether, 302 Ill. 162, 134 N.E. 85. But where an owner leases property with actual or constructive notice of a defective and dangerous condition which remains uncorrected, the owner, notwithstanding the lease, is liable to strangers for injuries caused by the defect to the same extent as if he were in control and possession of the property. Marcovitz v. Hergenrether, 302 Ill. 162, 134 N.E. 85; West Chicago Masonic Ass'n v. Cohn, 192 Ill. 210, 61 N.E. 439, 55 L.R.A. 235; Baird v. Shipman, 132 Ill. 16, 23 N.E. 384, 7 L.R.A. 128; Tomle v. Hampton, 129 Ill. 379, 21 N.E. 800.

While it is generally true, as defendant contends, that infants have no greater rights to go upon the land of others than adults and their mere minority imposes no duty upon landowners to expect them or prepare for their safety. Burns v. City of Chicago, 338 Ill. 89, 169 N.E. 811; McDermott v. Burke, 256 Ill. 401, 100 N.E. 168, recognized exceptions exist where the landowner maintains an attractive nuisance upon the premises, Wolczek v. Public Service Co. 342 Ill. 482, 174 N.E. 577; Stollery v. Cicero & Proviso Street Railway Co. 243 Ill. 290, 90 N.E. 709, or, even in the absence of a dangerous attraction, where the owner knows that small children customarily play on the property. In the latter situation, where an owner knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity, are incapable of discovering the danger or appreciating the risk involved, and where the expense or inconvenience to the owner in remedying the condition is slight compared to the risk to the children, the duty devolves upon the owner to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it. Ramsay v. Tuthill Building Material Co. 295 Ill. 395, 129 N.E. 127, 129, 36 A.L.R. 23; Gritton v. Illinois Traction, Inc., 247 Ill.App. 395; Restatement of the Law of Torts, sec. 339; Prosser on Torts, sec. 77.

In the Ramsay case the court said: 'There is no implied invitation from the mere existence of a dangerous attraction which is not discoverable off the premises; but, if to the knowledge of the owner children habitually come upon his premises where a dangerous condition exists to which they are exposed, the duty to exercise care for their safety arises, not because of an implied invitation, but because of his knowledge of unconscious exposure to danger which the children do not realize.'

In the Gritton case, a boy nine years of age was injured by a broken electric feed wire hanging down almost to the ground on a virtually abandoned switch-track of an electric railroad company where children were accustomed to play. The question of whether the switch track constituted an attractive nuisance was adjudged to be immaterial and the traction company, having knowledge that the locality where it maintained dangerous high-voltage wires was commonly used as a playground by little children, was held to be under a legal duty to exercise ordinary care to protect them from injuries. Farmer v. Alton Building and Loan Ass'n, 294 Ill.App. 206, 13 N.E.2d 652, is to much the same effect.

A good cause of action was stated.

The next question requiring consideration is whether a tenancy from month to month is a single continuous tenancy or constitutes a new letting at the beginning of each month. If, in contemplation of law, there is a re-entry and reletting at the beginning of each month, then it was only necessary for plaintiff to show that the defect in the railing existed at the beginning of the month during which the accident occurred, namely, July 1, 1945. Otherwise, it would be incumbent upon plaintiff to show that the defect existed at the time of the original leasing of the second-floor apartment, which was either April 1, 1945, or October 1, 1944.

The question thus presented has not heretofore been passed upon by this court. In support of the proposition that in a month-to-month tenancy there is a new demise at the beginning of each month, plaintiff relies upon Donk Brothers Coal & Coke Co. v. Leavitt, 109 Ill.App. 385, Borman v. Sandgren, 37 Ill.App. 160, Griffith v. Lewis, 17 Mo.App. 605, Gandy v. Jubber, 5 Best & Smith, 78, and Perkins v. Weibel, 132 Conn. 50, 42 A.2d 360. The decision in Donk Brothers Coal & Coke Co. v. Leavitt, 109 Ill.App. 385, is based solely upon the decision in Borman v. Sandgren, 37 Ill.App. 160, which, in turn, follows Griffith v. Lewis, 17 Mo.App. 605, and the English case of Gandy v. Jubber, 5 Best & Smith, 78, without any discussion. The Griffith case is also directly traceable to the Gandy case through an earlier decision in Clarke v. Thatcher, 9 Mo.App. 436. Gandy v. Jubber, 5 Best & Smith, 78, the ultimate authority for the rule asserted, holds that where property is leased under a tenancy from year...