Andonique v. Carmen

• Decision Date: 17 December 1912
• Citation: 151 S.W. 921,151 Ky. 249
• Parties: ANDONIQUE v. CARMEN.
• Court: Kentucky Court of Appeals

151 S.W. 921

151 Ky. 249

ANDONIQUE v. CARMEN.

Court of Appeals of Kentucky.

December 17, 1912

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

Action by Ida Carmen against Annie L. Andonique. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.

Burwell K. Marshall and John L. Woodbury, both of Louisville, for appellant.

Flexner & Gordon and J. L. Richardson, all of Louisville, for appellee.

CLAY C.

Plaintiff Ida Carmen, fell into a privy on premises which she rented from defendant, Annie L. Andonique, and was injured. She brought this action against defendants, Annie L. Andonique and the Fidelity Trust Company, to recover damages.

The cause of action is predicated on the fact that the flooring sills, and platform of the privy gave away by reason of their dangerous and defective condition, and precipitated her into the vault; that she did not know of such dangerous and defective condition, and could not have discovered same by the exercise of ordinary care; that such dangerous and defective condition was known to the defendant and her agent, the Fidelity Trust Company, and its servants, agents, officers, and employés, prior to the time plaintiff leased the premises; and that they concealed such dangerous and defective condition from her. At the time the action was instituted Annie L. Andonique was a nonresident, and process was served on the Fidelity Trust Company, which company it is conceded was defendant's agent for the purpose of leasing the property, collecting the rents, and looking after the property. The defendant Annie L. Andonique, without entering her appearance to the action, moved to quash the service of summons on the ground that the Fidelity Trust Company was not her agent for the service of process, but was only her agent for the purpose of renting out and taking charge of the real estate owned by her in the city of Louisville. At the same time she filed a special demurrer to the jurisdiction of the court. Both the motion to quash and the special demurrer were overruled. The action was dismissed as to the Fidelity Trust Company. The defendant Annie L. Andonique filed an answer, denying the allegations of the petition, and pleading contributory negligence on the part of the plaintiff. The plea of contributory negligence was denied by reply. Trial was had, which resulted in a verdict and judgment in favor of plaintiff in the sum of $1,999.99. Defendant appeals.

The property in question is a small cottage, and is located at the southwest corner of Twentieth and Chestnut streets in the city of Louisville. The defendant, Annie L. Andonique, lived in St. Louis. The Fidelity Trust Company was her agent in charge of her property, and as such agent in charge of her property, and as such agent rented the property to the plaintiff by written lease dated January 23, 1910. The privy is located at the extreme rear of the property. The accident occurred on July 19, 1910. Plaintiff testifies that she had no knowledge, either at the time the lease was executed or at the time of the accident, of the dangerous and defective condition of the privy, and that there was nothing in the appearance of the privy to indicate that it might be dangerous or defective. The wood underneath the floor was decayed, but this condition was not apparent from an inspection of the floor. This condition was concealed from her. On the day of the accident she went into the closet, and the whole floor gave away, precipitating her into the vault. She fell a distance of 12 or 14 feet into the fecal matter. It got all over her clothing and person. She remained in the vault about 20 or 30 minutes, when she was rescued by one of the men connected with the fire department. Her left arm and right side were injured, and her eyes were affected for a while. The principal injury was to her spine and head. Since the injury she has been unable to do her household work. After the accident the joist, or sleeper, was brought to her, and it was decayed. There was nothing in the looks of the flooring to indicate that there was any danger there. Daniel Leahan, a member of the fire department, testified that he rescued plaintiff from the vault in question. The vault had caved in from what he judged to be rotten joists. Dr. Robert E. Gatz testified to the extent of her injuries, and gave it as his opinion that the injury to her spine was permanent. Mrs. Maggie Carmen, a sister-in-law of plaintiff, and Mamie Mitchell, a domestic, testified to plaintiff's suffering and her inability to do her household work after the injury. Emmett B. Jeffries testified that he occupied the premises in question during the year 1908, and during the year 1909 up until a day or two before Christmas. He says that prior to the time he left the premises he complained to the employés of the Trust Company that the privy was dangerous. The person he made the complaint to was Kinser, the collector. Thereafter he made a second complaint of the dangerous condition of the privy. On cross-examination he stated that the privy needed everything new. It was all rotted down, and there was no top on it, and the sides were all off. He told the man at the Trust Company that the privy was liable to fall in and cause trouble. Upon being asked if anybody had gone there if the condition was such that they could have seen it, he replied: "Anybody that didn't understand it would not, I reckon." On redirect examination he testified that there was no evidence on the top covering of the vault to indicate that it was rotten underneath, but that the shaky condition was what alarmed him. Plaintiff was then recalled, and testified that none of the officers or agents of the Fidelity Trust Company ever informed her of the dangerous condition of the privy. On cross-examination she was asked how she got into communication with Mr. Jeffries. She replied that one of the young gentlemen who collected the rent for the Fidelity Trust Company came to her house just after she got hurt and said: "Mr. Jeffries told me yesterday: 'I told you some one was going to get hurt there."' The young man who made this statement was not Mr. Kinser, but was the boy who collected for him.

For the defendant, D. F. Murphy, the manager of the real estate department of the Fidelity Trust Company, William Newhall, the assistant manager, William H. Wiser, who had charge of the repairs for that company, and N. R. Kinser, the collector, all testified either that no complaint was made to them of the dangerous condition of the vault in question, or that they had no recollection of a complaint being made. They further testified that all complaints for necessary repairs were registered by the company and immediately acted upon. Had a complaint been made, it would have been attended to promptly. J. H. Miller, a carpenter, who was sent to examine the privy just after the accident, testified that the flooring was sound, but the joists underneath the floor were decayed.

The first question to be determined is: Was the defendant properly before the court? Subsection 6 of section 51, Civil Code, provides: "In actions against an individual residing in another state, *** engaged in business in this state, the summons may be served on the manager or agent of or person in charge of said business in this state, in the county where the business is carried on or in the county where the cause of...