Fakhoury v. Magner

• Decision Date: 21 April 1972
• Citation: 101 Cal.Rptr. 473,25 Cal.App.3d 58
• Court: California Court of Appeals Court of Appeals
• Parties: Martha FAKHOURY, Plaintiff, Appellant and Respondent, v. Toby MAGNER, Defendant, Cross-Complainant, Respondent and Appellant, S. Wagner and Company, Defendant, Cross-Defendant, Respondent and Appellant. Civ. 28054.

Page 473

101 Cal.Rptr. 473

25 Cal.App.3d 58

Martha FAKHOURY, Plaintiff, Appellant and Respondent, v. Toby MAGNER, Defendant, Cross-Complainant, Respondent and Appellant S. Wagner and Company, Defendant, Cross-Defendant, Respondent and Appellant.

Civ. 28054.

Court of Appeal, First District, Division 4, California.

April 21, 1972.

Rehearings Denied May 12, 1972.

Hearing Denied June 15, 1972.

Cartwright, Saroyan, Martin & Sucherman, Inc., San Francisco, for appellant.

Russ, Benson & McConnell, San Francisco, for respondent and appellant Magner.

Sedgwick, Detert, Moran & Arnold, San Francisco, for respondent and appellant Wagner & Co.

DEVINE, Presiding Justice.

This case is an action for personal injuries, together with an action on a cross-complaint by one defendant against another for indemnity. Plaintiff, who was injured when a couch in her rented furnished apartment partly collapsed, sued the landlord, Magner, and also the maker and seller of the couch, S. Wagner and Company. She was awarded judgment on a jury's verdict in the amount of $7,000 against the landlord, but the court granted the landlord's motion for new trial. Plaintiff appeals from this order. Verdict was for S. Wagner and Company and against plaintiff, but plaintiff was awarded a new trial. The company appeals from the order.

Magner, the landlord, cross-complained for indemnity against the Wagner company. Upon trial by the judge without a jury, judgment was for the cross-defendant, but the cross-complaint was awarded a new trial. The Wagner company appeals from the order. The landlord, although standing on the new trial order in his favor, cross-appeals from the judgment in favor of S. Wagner and Company.

FACTS

The facts are not disputed. On April 5, 1963, plaintiff, Mrs. Fakhoury, rented an apartment from defendant Magner. The apartment was furnished. Plaintiff was assured by the manager that everything was in good condition. One evening in August 1963, plaintiff, who weighed about 126 pounds, holding her two and a half year old boy, who weighed about 40 pounds, in her arms, sat in a 'kind of a fall' on a couch in the apartment. She fell through and injured her back on the edge of the couch. Plaintiff testified that, prior to the accident, she seldom had sat on the couch, and never on the end of it. She had not had occasion to lift or to clean the cushions prior to the accident. After the accident she saw that the wires supporting the cushion were loose and not on the hook.

Defendant Magner testified that he bought the couch from defendant Wagner and Company. It was bought in September 1962. Plaintiff was the first tenant to have used it. After the accident, the manager of the apartment found that two supporting straps under the cushion were missing.

The vice president of the Wagner company, Mr. Leichter, testified that the allegedly loosened straps were made of steel wires covered with plastic. The straps and couch were made in Japan. Couches are assembled and the straps are inserted into groves by the Wagner company before the couches are shipped. Leichter, who weighs 240 pounds, experimented with the couches. Two of four straps were removed. Leichter sat on one couch and did not fall all the way through and did not strike his back on the frame. The straps are held in by the pressure of their having been stretched into their respective grooves. Leichter testified that they could not easily be pulled out, and that a woman or elderly man could probably not remove a strap. Because he did not feel that the straps would come out, he did not deem it necessary for his company to do anything to prevent their doing so. He also testified that before the couches are shipped out, they are inspected for defects. He admitted that occasionally defective couches are shipped.

I. PLAINTIFF'S CASE AGAINST THE LANDLORD

1. Strict Liability

Although plaintiff's case against the landlord was based partly on a theory of negligence because of failure to inspect the couch adequately, plaintiff's main proposition is that the landlord is held to strict liability. On the authority of this court's opinion in McClaflin v. Bayshore Equipment Rental Co., 274 Cal.App.2d 446, 79 Cal.Rptr. 337, the trial court instructed the jury as follows: 'The lessor of an article who leases it to a person for use under circumstances where he knows that this article will be used without inspection for defects is liable for injuries proximately caused by defects in the manufacture or design of the article of which the user was not aware, provided the article was being used for the purpose for which it was designed and intended to be used.' The court refused this instruction, offered by the landlord: 'There is no liability upon the landlord either to a tenant or others for defective condition of the demised premises whether existing at the time of the lease or developing thereafter, in the absence of concealment of a known danger, an express covenant to repair, or a statutory duty to repair.'

On motion for new trial, the judge became convinced that he had been in error in presenting the subject of strict liability to the jury. This appears from his statements made at the time of the granting of the motion for new trial. The judge did not specify in writing his reasons for granting the new trial; wherefore, the order could not be sustained if it were based upon insufficiency of the evidence to justify the verdict. (Code Civ.Proc., § 657; Mercer v. Perez, 68 Cal.2d 104, 109, 65 Cal.Rptr. 315, 436 P.2d 315.) But this is not of importance at this point, because the question before us and before the trial judge was essentially one of law, and it is not necessary for reasons to be stated in the order granting a motion of new trial if the order is made upon the ground that there was error in law, which was the only other ground stated in the notice of motion. (Treber v. Superior Court, 68 Cal.2d 128, 131--132, 65 Cal.Rptr. 330, 436 P.2d 330.) The question whether a landlord may, under circumstances such as those present, be held to strict liability for latent defects in furniture, is a new one. The common law and the law in this state relating to liability of the landlord for latent defects in the demised premises is well established. In the absence of fraud, concealment, covenant in the lease, or statutory duty to repair, the landlord is not liable to the tenant for injuries due to a defective condition or faulty construction of the premises. (Lee v. Giosso, 237 Cal.App.2d 246, 46 Cal.Rptr. 803; Del Pino v. Gualtieri, 265 Cal.App.2d 912, 919--920, 71 Cal.Rptr. 716; Gustin v. Williams, 255 Cal.App.2d Supp. 929, 931--932, 62 Cal.Rptr. 838; Forrester v. Hoover Hotel & Inv. Co., 87 Cal.App.2d 226, 196 P.2d 825.) But we have before us, not a case of defective premises, but of defective furniture. In Price v. Shell Oil Co., 2 Cal.3d 245, 85 Cal.Rptr. 178, 466 P.2d 722 (decided subsequent to the granting of the motion for new trial in our case), and in McClaflin v. Bayshore Equipment Rental Co., Supra, 274 Cal.App.2d 446, 79 Cal.Rptr. 337, the doctrine of strict liability in tort was held applicable, under certain circumstances, to lessors who have placed articles on the market knowing that they are to be used without inspection for defects.

We conclude that, under the circumstances of this case, the doctrine of strict liability does apply to the landlord, not as lessor of real property, but as lessor of the furniture. It is not unrealistic to regard the landlord as coming within both categories. Furnished apartments are considered quite different from those which are unfurnished. They are frequently advertised separately, and of course for a higher rent. In fact, rental of furniture is an enterprise of its own, falling into a separate category in such places as the yellow pages of the telephone directory. There does not seem to be good reason for holding, as we surely would under existing case law, that the lessor of furniture who supplies it for an empty apartment should be held to strict liability, under appropriate circumstances, but holding the landlord exempt just because he is also the owner and lessor of real property. The landlord has certain rights in respect of personal property, which he does not have as lessor of the real property. If the furniture be wrongfully appropriated, an action in conversion will lie; it is not taxed; a different scale of depreciation is allowable.

We do not hold that under every possible set of circumstances the doctrine of strict liability will apply. As in the case of personal property which is leased, where no contemporaneous lease of real property is involved, there are limitations. The property must have been placed in the stream of commerce; a casual or isolated transaction will not bring the doctrine into play. In the case at hand, the landlord furnished two apartments in San Francisco and three in Sacramento at the same time with the same kind of couch purchased from the same seller. Moreover, the item was a substantial one, not an incidental bit of furniture which might be unlikely to produce any kind of injury. Again, the item was relatively new, subject to recent inspection and readily traceable to the seller. Altogether, the transaction of renting furniture was substantially a commercial one. These conditions present, the reasons set forth in the McClaflin and Price cases are applicable here: the injured persons are virtually powerless to protect themselves; the lessor can recover the cost of protection by charging for it in his business; and he has a better opportunity than does the injured person of recouping from anyone primarily responsible for the defect.

Therefore, the verdict and judgment in favor of plaintiff were not against law and were not caused by errors in law in the giving of plaintiff's instruction and in the refusing of defendant's, as stated above. When a new trial is granted because of an instruction which...