Carver v. Howard

• Decision Date: 24 June 1955
• Citation: 280 S.W.2d 708
• Parties: George CARVER, Administrator of the Estate of Leroy Allen, deceased, Appellant, v. Wilhelmina HOWARD, W. D. Fiser, d/b/a W. D. Fiser Plumbing and Heating Company, Appellees. George CARVER, Administrator of the Estate of Nellie Carver Allen, deceased, Appellant, v. Wilhelmina HOWARD, W. D. Fiser, d/b/a W. D. Fiser Plumbing and Heating Company, Appellees. Mary ELLIS, Suing as next friend for and in behalf of her infant daughter, Teresa Ellis, an infant under fourteen years of age, Appellant, v. Wilhelmina HOWARD, W. D. Fiser, d/b/a W. D. Fiser Plumbing and Heating Company, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 708

280 S.W.2d 708

George CARVER, Administrator of the Estate of Leroy Allen, deceased, Appellant, v. Wilhelmina HOWARD, W. D. Fiser, d/b/a W. D. Fiser Plumbing and Heating Company, Appellees.

George CARVER, Administrator of the Estate of Nellie Carver

Allen, deceased, Appellant, v. Wilhelmina HOWARD, W. D. Fiser, d/b/a W. D. Fiser Plumbing and Heating Company, Appellees.

Mary ELLIS, Suing as next friend for and in behalf of her

infant daughter, Teresa Ellis, an infant under

fourteen years of age, Appellant, v. Wilhelmina HOWARD, W. D. Fiser, d/b/a W. D. Fiser Plumbing and Heating Company, Appellees.

Court of Appeals of Kentucky.

June 24, 1955.

August Winkenhofer, Jr., Myers & Logan, Bowling Green, for appellant.

Bell & Orr, G. D. Milliken, Jr., Bowling Green, for appellee.

HOGG, Judge.

In this action appellants, in consolidated cases, sought to recover damages from appellees, alleging that their intestates' deaths and injuries to an infant, Teresa Ellis, were proximately caused by the joint and independent negligence of appellees, Wilhelmina Howard and W. D. Fiser, doing business as W. D. Fiser Plumbing and Heating Company. This is an appeal from a judgment entered upon a verdict directed for appellees at the close of appellants' evidence. Another defendant in the trial below, Western Kentucky Gas Company, which also received a directed verdict, is not made a party to this appeal.

The facts, insofar as they are pertinent to this appeal, disclose that on the night of August 31, 1952 a fire broke out in the cabin occupied by Leroy and Nellie Allen. As the result of the injuries received in the fire, Nellie Allen died on September 5, 1952 and Leroy Allen died on September 18, 1952. Injured seriously in the conflagration was Teresa Ellis, an infant, who was in the custody and home of the Allens on the night of the fire.

The Allens, who had moved into the cabin a few days before the fire, were to be the employees of Mrs. Howard, whose residence was on the front of the lot on which the cabin stood. In consideration of their services, Mrs. Howard had agreed to furnish the Allens the cabin. Shortly after the Allens moved into the cabin, W. D. Fiser, appellee, operator of a plumbing company, dispatched one of his employees on Mrs. Howard's request, to her property for the purpose of lighting a floor furnace and an automatic gas water heater in a garage apartment located on the lot. While there, Fiser's employee, at the request of Mrs. Howard, went to the cabin for the purpose of showing and instructing the Allens, who were unfamiliar with such devices, how to light and operate a side-arm gas water heater and a gas space heater located in the cabin. This the employee did in the presence of the Allens. Three days later the fire occurred.

An offer of testimony, by way of avowal, was made to the court as to what appellant Carver would have testified, had he been permitted to do so, concerning a conversation he had with the decedents in the hospital at about 9 a. m. on the morning of and immediately after the fire. He offered to testify that decedent Nellie Allen told him at that time that she could not live and believed she was going to die; that immediately before the fire she and her husband, with the infant appellant, had been in the bedroom and she did not know what happened except that her husband got up to prepare something to eat, struck a match, and the fire burst out. This evidence was not competent. Dying declarations are not admissible in civil cases except where the declarations are a part of the res gestae or against interest. Prudential Ins. Co. of America v. Keeling's Adm'x, 271 Ky. 558, 112 S.W.2d 994, and cases therein cited. See also, Wigmore on Evidence, section 1432.

The fire chief of the City of Bowling Green discovered soon after the fire that the gas line which extended under the cabin floor had an uncapped T in it, which allowed gas to escape freely. This fact was discovered after he chopped through the floor. The cabin rested on the floor with only a four to eight inch clearance from the floor of the cabin to the ground. He testified that the heaviest seat of damage was in the area of the uncapped T, but he declined to name the gas leak as the cause of the fire.

The gas line serving the Howard dwelling, houses and apartments on the lot extended from the street to the meter at the Howard residence; from there to the garage apartment; from there to a small cottage, and then finally to the cabin where the Allens lived. It is admitted that Mrs. Howard, from her meter and through her gas line, furnished gas for heating purposes for the houses and apartments of her tenants.

The underlying legal question in this case as to Mrs. Howard, is one of a landlord's liability to tenants and a guest for injuries and resulting deaths, and injury to the guest, attributable to the alleged defective and dangerous gas line located within the leased premises, but through which the landlord furnished gas for the use of the tenants.

In determining the liability of a landlord to a tenant and his guests, invitees and others for injuries attributable to defects in the premises, there is in the law a clear distinction existing between a state of facts where the tenant is put in complete and unrestricted possession and control of the premises with no statutory or contractual obligation on the landlord to repair, and a case where the defective condition is located in that portion of the demised premises, or appurtenances, retained by the lessor for the common use and benefit of a number of tenants.

In the first situation, the landlord is liable only for the failure to disclose known latent defects at the time the tenant leases the premises. Franklin v. Tracy, 117 Ky. 267, 77 S.W. 1113, 78 S.W. 1112, 63 L.R.A. 649; Lindsey v. Kentucky Development Co., 291 Ky. 253, 163 S.W.2d 499; Speckman v. Schuster, 183 Ky. 326, 209 S.W. 372. In the last situation the landlord must exercise ordinary care to keep in a reasonably safe condition the premises reserved for the common use of his tenants. Richmond v. Standard Elkhorn Coal Co., 222 Ky. 150, 300 S.W. 359, 58 A.L.R. 1423; Home Realty Co. v. Carius, 189 Ky. 228, 224 S.W. 751; Offutt v. O'Leary, 204 Ky. 726, 265 S.W. 296; Cohen v. White, 206 Ky. 209, 266 S.W. 1078.

The appellants assert the instant case falls under the second rule above set out and cite in support of this: Restatement of Torts, Vol. 2, section 361; Ideal Furniture Co. v. Mazer, 234 Ky. 665, 28...