Coleman v. DeMoss, 20244

• Decision Date: 21 April 1969
• Docket Number: No. 1,No. 20244,20244,1
• Citation: 144 Ind.App. 408,246 N.E.2d 483
• Court: Indiana Appellate Court
• Parties: Harry COLEMAN, Vieno M. Coleman, Appellants, v. Marvin L. DeMOSS, Appellee

Page 483

246 N.E.2d 483

144 Ind.App. 408

Harry COLEMAN, Vieno M. Coleman, Appellants, v. Marvin L. DeMOSS, Appellee.

No. 20244.

Appellate Court of Indiana, Division No. 1.

April 21, 1969.

Rehearing Denied May 21, 1969.

McCray, Clark, Statham & McCray, Evansville, for appellants.

Ralph M. Koehne, John D. Clouse, Evansville, Loren McGregor, Princeton, for appellee.

CARSON, Judge.

This action was initiated by appellee, Marvin L. DeMoss, against appellants, Harry and Vieno M. Coleman, to recover damages for medical expenses and loss of services of his wife due to personal injuries allegedly sustained as the result of a fall on property owned by defendant-appellants.

The cause was filed in the Vanderburgh Probate Court and was venued to the Gibson Circuit Court, where it was tried by jury which returned a verdict for Fifteen Thousand Dollars.

Defendant-appellants demurred to Paragraphs I and II of plaintiff-appellee's third amended complaint. The court sustained the demurrer to Paragraph II and overruled the demurrer to Paragraph I. It is averred in Paragraph I of appellee's complaint; that the appellants owned certain real estate situated at 4406 East Morgan Avenue, Evansville, Indiana; that upon said real estate, located some 125 feet to the rear of appellants' residence, is a frame bungalow; that entrance to and exit from said bungalow was had by passing from Morgan Avenue and across appellants' residential premises.

It is further alleged; that appellee and his wife, pursuant to an oral agreement between appellee and appellants, began occupying the bungalow in exchange for appellee's personal services as a yard man and payment of Fifteen ($15.00) Dollars per month, cash; that shortly after appellee and his wife moved into the bungalow, appellants directed appellee to drive appellee's auto from Morgan Avenue along the west side of an open field, to a place parallel to, and about 65 feet east, of the bungalow; that appellants owned and exercised absolute control of said open field which was separated and set apart from the bungalow by an open ditch and ridge of dirt; that after parking their car in said open field, as directed by appellants, appellee and his wife were required to ascend the ridge of dirt and cross the ditch in reaching the bungalow.

On August 9, 1959, as appellee's wife was crossing the ditch, she slipped upon the ridge of dirt, fell into the ditch and was injured. Appellee averred several acts of negligence to which appellants filed answer in denial under Rule 1--3 of the Rules of the Supreme Court of Indiana. In their answer, appellants allege affirmative defenses of contributory negligence and incurred risk. Appellee filed a denial of appellants' asserted affirmative defenses. During trial, appellee's complaint was further amended so that all allegations of negligence were withdrawn from consideration of the jury, except the allegations of failure to fill, cover, remove, bridge or provide a walkway or handrail over said open ditch and ridge of dirt and that appellants failed to exercise reasonable care to keep and maintain the passageway in a fit and reasonably safe condition for the use of appellees.

Subsequent to return of the jury's verdict in favor of appellee for Fifteen Thousand ($15,000.00) Dollars, the court entered consistent judgment. Defendant-appellants appealed to this court, assigning as error:

'1. That the Court erred in overruling Appellants' motion for new trial.

'2. That the Court erred in overruling the demurrer of Appellants to the 1st paragraph of Appellee's third amended complaint.

'WHEREFORE, the Appellants pray that the judgment rendered herein be reversed and that the Appellants be granted a new trial, and for such other relief as the Appellants may be entitled to.'

Appellee assigns five cross-errors and prays that the judgment of the Gibson Circuit Court, be affirmed and not reversed. Appellants' motion for a new trial contains forty-five specifications of error. As Specification Nos. 3, 20, 23, 27, 28, 30, 34, 37, 40, 42, 43 and 44 are not argued by appellants, the same are waived. Rules of the Supreme Court of Indiana, Rule 2--17.

The initial portion of appellants' argument is premised upon assigned error No. 2, that the trial court erred in overruling appellants' demurrer to paragraph one of appellee's complaint. Appellants contend that the complaint fails to state facts sufficient to allege a duty flowing from defendant-appellants to plaintiff-appellee. Appellants argue the lack of a duty under a 'master-servant,' 'landlord-tenant' or 'invitee' theory of law. The case below was tried on a 'landlord-tenant' theory and in light of the facts, properly so. Appellants assert that the doctrine of caveat emptor applies to the rental of real property. In support of the proposition, appellants cite: Purcell v. English (1882), 86 Ind. 34; Franklin Fire Insurance Co. v. Noll et al. (1945), 115 Ind.App. 289, 58 N.E.2d 947; and, Hamilton et al., Executors v. Feary (1893), 8 Ind.App. 615, 35 N.E. 48.

The Noll decision is no authority for the proposition advanced by appellants. In that case, a clause in the written lease, specifically absolved the landlord of liability in circumstances dissimilar to those at bar.

Our Supreme Court, in Purcell, supra, was quite explicit in limiting their decision to the immediate facts presented. At page 42 of volume 86, Indiana reports, the court stated:

'We are satisfied that the authorities warrant us in adjudging that, where a stairway connected with apartments hired in a tenement house occupied by several tenants is rendered unsafe by temporary causes, such as the accumulation of snow and ice, the landlord is not liable to the tenant who uses such a stairway with full knowledge of its dangerous condition, unless there is a contract on the part of the landlord to keep the premises in repair and fit for safe use.'

And, at page 43:

'Whether a landlord hiring apartments to many tenants is liable for latent defects, or for faults in the construction, or for permanent defects in the common passage ways, we do not decide.'

The Supreme Court, in Purcell, supra, appeared to place great weight upon the fact that the defect was of a temporary and transient nature and indicated a divergence of opinion had the defect been permanent. It should also be noted that in the Purcell case, the defect was located on the demised premises. Appellant has not demonstrated wherein the facts at bar fall so squarely within the limited scope of Purcell, supra, that it could be held as a matter of law that appellee has failed to state facts sufficient to allege a duty.

In Hamilton et. al. Executors v. Feary, supra, this court was confronted with a case in which a tenant was injured when she fell into an open cistern located on the demised premises. This court reversed the trial court's action in overruling the defendant-appellant's demurrer to the plaintiff-appellee's complaint. In so doing, however, this court stated, at pages 624 and 625, 35 N.E. at page 51, the following:

'To determine whether or not there was actionable negligence, it must first be ascertained what, if any, duty the appellant owed the appellee, and the manner in which the appellant failed to discharge such duty. The duties owing by a landlord to his tenant are various, but they are limited. The landlord does not insure the safety of the premises, nor does he impliedly warrant them to be inhabitable, or fit for certain uses, and, as a general rule, the tenant, under the maxim caveat emptor, assumes all the risks incident to the occupancy, having complete control and dominion over the premises. To this general rule there are, however, several exceptions. * * * the landlord is answerable where he controls or retains possession of a portion of the premises, or a portion is used in common by two or more tenants, and an injury occurs, through some negligence or fault of the landlord, upon that portion over which he has the control, or which is used in common. * * * The liability of the lessor in these, and perhaps other instances arises from the principle that he owes the lessee a duty, and if by the lessor's failure or negligence to discharge such duty, and without any contributing fault of the lessee, the latter sustains injury, a right of action arises in favor of the lessee or tenant for the damages sustained.'

We would note that there arises a duty in the landlord to keep and maintain in a reasonably safe condition those areas of which he retains control. See also: La Plante v. La Zear (1903), 31 Ind.App. 433, at page 437, 68 N.E. 312, at page 313, wherein this court stated:

'And so the landlord is answerable where he controls or retains possession of a portion of the premises, or a portion is used in common by two or more tenants, and an injury occurs, through some negligence or fault of the landlord, upon that portion over which he has the control, or which is used in common.'

Contrary to appellants' contention, the duty of the landlord, once it is established, remains the same, whether the premises are occupied by one or many tenants. Purcell v. English, supra.

Appellee's first paragraph of complaint alleges:

'That at all times herein mentioned, said passageway remained under the exclusive control and domain of said defendants.'

Appellants assert that the above allegation constitutes a mere conclusion and when the complaint had been first tested by a motion to make more specific which was overruled, the complaint stood alone upon the conclusion, unsupported by inferences, when subsequently tested by demurrer for want of facts. Appellants cite in support thereof, Pier v. Schultz (1961), 243 Ind. 200, 182 N.E.2d 255. An examination of that case and of Deming Hotel Co. v. Prox (1968), Ind.App., 236 N.E.2d 613; reveals that the rule stated by appellant is only applicable where the motion to make more specific was meritorious. Section 1, ch. 62, Acts of 1915; being Burns ...