Davis v. Manning
| Decision Date | 02 October 1915 |
| Docket Number | 17926 |
| Citation | 154 N.W. 239,98 Neb. 707 |
| Parties | MARY J. DAVIS, APPELLEE, v. PATRICK MANNING, APPELLANT |
| Court | Nebraska Supreme Court |
REHEARING of case reported in 97 Neb. 658. Former judgment of affirmance vacated, and judgment of district court reversed.
REVERSED.
MORRISSEY C. J. HAMER, J., not sitting. SEDGWICK, J., FAWCETT, J dissenting.
This cause is before us on rehearing; the original opinion being found in 97 Neb. 658. The only question which will be given consideration at this time is that of the liability of landlords, covered by paragraph 3 of the syllabus in our former opinion, and embodied in instructions numbered 4 and 9 given by the trial court. The action is one for damages by a tenant against her landlord for injuries sustained because of what is alleged to be a defective condition of the floor. The house had been erected 25 or 30 years before the date of the accident, and had been used all these years for a dwelling, plaintiff having been a tenant therein on two separate occasions prior to her last tenancy, which began several months prior to the date of the injury. When the house was built there was a cellar constructed under the main part thereof, and there was a brick wall laid, upon which the kitchen rested. No openings were left for ventilators, and it is contended that, because of this failure, the kitchen floor became affected by dry rot on the lower side, while the upper surface of the boards remained sound; that plaintiff had no knowledge of this condition, and that while engaged in her regular household work she stepped upon a board, which had become so rotten that it was unable to support her weight, and her foot passed through the floor and she suffered the injuries complained of.
It is claimed that, if defendant did not have actual knowledge of the condition of the floor, he ought to have known of the dangerous condition, and the court instructed the jury: "(4) In order to recover in this case, the plaintiff must show by a preponderance of the evidence the following facts: * * * That the defendant knew of said defect in said kitchen floor at the time of the last leasing of said premises, or should have known of the defect in said floor by the exercise of reasonable care in observing the natural law of decay of said kitchen floor; that the plaintiff did not know of the defect in said floor, and that the same was latent or hidden and could not have been discovered by the plaintiff by using ordinary care and caution in endeavoring to discover the same."
By paragraph 9, the court instructed the jury that defendant could not be held liable for damages, "unless * * * the kitchen floor was in fact in a dangerous and defective condition, and that the landlord knew that said floor was in said dangerous and defective condition."
By these paragraphs two inconsistent rules were submitted to the jury, the former saying that defendant was liable if he knew or "should have known" of the defect, while the latter paragraph held defendant liable only in case he had actual knowledge of the defective condition. If the rule laid down in paragraph 4 is correct, the giving of paragraph 9 was without prejudice to defendant; but, if the rule stated in paragraph 4 is incorrect, it was not cured by the giving of paragraph 9. Plaintiff does not seriously contend that defendant had actual knowledge of the defective condition of the floor, but the right to recover is based on the theory that, defendant having built the house for his own use, and being present when the work was done, and knowing that the kitchen was built over a dark, damp hole, without any provision being made for ventilation, was bound to take notice of the "natural law of decay," and therefore was presumed to know that 25 or 30 years after the erection of the house and the laying of this floor, which was of the best quality of white pine, an inch or more in thickness, the floor was in a defective and dangerous condition; and that, under the rule laid down in paragraph 4 of the court's instructions, he is liable for the injury.
There is no evidence to show that defendant had actual knowledge of the defective condition alleged, and it is not seriously contended by plaintiff that there is any evidence to support the rule laid down in paragraph 9. From the very nature of the case, plaintiff must have known the condition of the floor better than did the defendant. She had lived in the house before, and for several months prior to the accident she occupied that kitchen. She knew, or might have known, the age of the house. The record shows that it was old and dilapidated in appearance. It was plainly to be seen that there were no ventilators under the kitchen, and the tenant must be held to have equal knowledge of the law of decay as the landlord. There was no concealment of defects actually known to the landlord.
The cases covering the question under consideration are found in a note to Walsh v. Schmidt, 206 Mass 405, 92 N.E. 496, in 34 L. R. A. n. s. 798, and, with a single exception, they show the rule to be that, in the absence of warranty, deceit or fraud, a landlord is not liable for injuries sustained by a tenant from defects in the demised premises, unless he had actual knowledge at the time of the lease of such defective condition. Kurtz v. Pauly, 158 Wis. 534, 149 N.W. 143. The exception is to be found in Hines v. Willcox, 96 Tenn. 148, 34 L. R. A. 824, 33 S.W. 914, and, on rehearing, Willcox v. Hines, 100 Tenn. 538, 41 L. R. A. 278, 46 S.W. 297, in which case it is held that the landlord is liable for personal injuries received by a tenant from defective premises, not only where he has actual knowledge of the defect, but also if...
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