Branstetter v. Robbins
| Decision Date | 07 May 1955 |
| Docket Number | No. 39534,39534 |
| Citation | 178 Kan. 8,283 P.2d 455 |
| Parties | Verna BRANSTETTER, Appellant and Cross-Appellee, v. Richard W. ROBBINS and Edward Robbins, d/b/a Robbins Ranch; Richard W. Robbins and Edward Robbins, Appellees and Cross-Appellants. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. In a case of landlord and tenant there is a duty on the landlord to disclose to the tenant all hidden and latent defects in the premises within his actual knowledge, and his failure to do so will make the landlord liable in damages to the tenant, or a member of the tenant's family, for injuries directly resulting from the undisclosed defects. On the other hand, a landlord is not required to be an insurer of his tenant and the other members of the tenant's family.
2. Where a defect complained of is as discernible, upon reasonable investigation, to the tenant as it is to the landlord, there is no duty of disclosure owed by the landlord to the tenant.
3. A demurrer to a cause of action based on personal injury and later discovery of a product which might have caused the injury was properly sustained for the reason that in a case of this kind negligence and proximate cause must be shown before a cause of action is complete.
4. Products known and commonly used as barnyard sprays are not in the same category as dynamite, blasting powder, and solidified glycerine because the latter are commonly known to be highly dangerous and deadly, and the highest degree of care is required of anyone who stores, keeps, or handles them.
5. A spray such as the one here involved is in the same class of commodity as poisoned wheat, rat poison, and insect killers and is not an uncommon product to be found around a farm premises.
6. No liability for personal injury which resulted to the wife of the tenant in a farm home will attach to the landlord where a spray such as the one here involved is as discoverable by the tenant as it is by the landlord. The situation here disclosed by the petition reveals a patent and not a latent defect.
Clarence N. Holeman, Wichita, argued the cause, and W. A. Kahrs, Robert H. Nelson, Wilbur D. Geeding, and Thomas E. Woods, Wichita, and John W. Graue, Greensburg, were with him on the briefs for appellant and cross-appellee.
W. D. Jochems, and J. Wirth Sargent, Wichita, argued the cause, and David J Wilson, and E. Keith Beard, Meade, Emmet A. Blaes, Wichita, and Martin Aelmore, Greensburg, were with them on the briefs for appellees and cross-appellants.
This appeal was taken from the trial court's order sustaining appellees' demurrer to the first and second causes of action set out in appellant's petition. A cross appeal has been filed by the appellees from another order of the trial court, which refused appellees the right to take depositions of certain witnesses, including the appellant.
The petition of the appellant, which was filed in the court below on July 23, 1953, omitting formal parts, for the first and second causes of action alleged as follows:
'3. Plaintiff further alleges that during the early part of December, 1951, her husband was hired by the Defendants through their agents, servants and employees, to work on the said Robbins Ranch; that the Defendants and each of them provided a house for occupancy of this Plaintiff and her husband; said house being located on property owned or controlled by said Defendants and each of them.
'4. Plaintiff further alleges that she moved into said house upon the instructions and invitation of the Defendants, their agents, servants and employees; that the Defendants through their agents, servants and employees, moved the furniture of this Plaintiff into the house, which she was to occupy while her husband was employed on the Robbins Ranch.
'5. That said premises were represented and held out to be safe and fit for human occupancy, when in truth and fact, there were hidden and latent defects of a dangerous nature; that said hidden and latent defects were known, or should have known or within the knowledge of the Defendants and each of them.
'6. That Plaintiff, during the early part of December, 1951 while occupying said house, received an injury to her eyes which has resulted in the removal of one eye, and loss of sight in the other.
'7. That after receiving said injury, Plaintiff discovered a quantity of a dangerous product known as 'Barnyard Spray' in the food cabinet of the kitchen of said house; that there were no warnings of the presence of said dangerous product; that a normal, prudent person would not expect to find barnyard spray in a food cabinet, and that the presence of said barnyard spray was within the knowledge of only the Defendants, their agents, servants and employees.
'8. That in addition to the removal of one eyeball and the loss of sight in the other eye, this Plaintiff has suffered extreme, excruciating and lasting pains through her eyes and head; that as a result of said poison getting into the eyes of this Plaintiff, same ate into her bloodstream, causing her entire body to break out into a severe rash, which remained with her for many, many months and caused her great humiliation as well as pain; that as a result of said poison getting into the system of this Plaintiff, she has become a highly nervous, irritable individual, is unable to perform her family and household duties, and worries constantly because of her condition.
'9. Plaintiff further alleges that she has had hospital and medical expenses of approximately $2,000.00, and that she will have additional hospital and medical expenses of from three thousand ($3,000.00) to four thousand ($4,000.00) dollars.
'10. Plaintiff further alleges that said poison is still eating on and into said Plaintiff, and is causing her extreme discomfort and pain, and that she is unable to sleep without the use of sedatives.
'11. Plaintiff further alleges that at the time of said accident, she was forty-seven years of age, had a life expectancy of twenty-four years, and was in excellent health, without a worry in the world; that she is a registered nurse and that due to the loss of her sight, she will never be able to practice nursing again.
'12. Plaintiff further alleges that she has been damaged, by the failure of the Defendants, their agents, servants and employees, to provide a safe premises for occupancy, and by their failure to provide a safe place for keeping their barnyard spray as herein alleged, to the extent of Two Hundred Thousand ($200,000.00) Dollars.
'Second Cause of Action.
'Comes Now the Plaintiff and for her second cause of action, and includes all of the allegations in said first cause and makes the following additional allegations, to-wit:
'1. Plaintiff alleges that by reason of the Defendants, their agents, servants and employees, the names of same being unknown to this Plaintiff, having placed a product known as 'Barnyard Spray' into a food cabinet, without giving any warning to person or persons who might occupy the premises and more particularly this Plaintiff, they are guilty of gross, wanton, and wilful negligence which entitles Plaintiff to punitive damages.
A demurrer was filed to this petition on the grounds that the petition did not state facts sufficient to constitute a cause of action in favor of appellant and against these appellees. The demurrer was argued and sustained on March 3, 1954, and the appellant has appealed from that order. Notice of appeal was served on March 4, 1954.
Appellant in her two specifications of error complains that the court erred in sustaining defendants' demurrer to plaintiff's first cause of action and in sustaining defendants' demurrer to plaintiff's second cause of action.
The principle to be determined by this appeal is whether the facts pleaded in the petition sufficiently state a cause of action by reason of a demurrer having been lodged against it. The rule of liberal construction must be applied in this case since there were no motions filed whereby the rule of strict construction could be invoked. Therefore, the first question presented is whether any negligence on the part of appellees was pleaded by the appellant.
Appellant cites the case of Moore v. Parker, 63 Kan. 52, 64 P. 975, 53 L.R.A. 778, wherein it was pleaded that the platform of a well, the only source of water supply, collapsed because the landlord had used defective and unsafe sleepers or stringers in the construction and had covered them with a wood...
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