Freitag v. Evenson
| Decision Date | 10 October 1962 |
| Citation | 232 Or. 225,375 P.2d 69 |
| Parties | Velma FREITAG, Respondent, v. Even EVENSON and Euphemia Evenson, his wife, Appellants. |
| Court | Oregon Supreme Court |
Asa L. Lewelling, Salem, argued the cause for appellants. On the brief were Lewelling & Gies, Salem.
Lawrence N. Brown, Salem, argued the cause for respondent. With him on the brief were Bell & Gehlen, Stayton.
Before McALLSTER, C. J., and SLOAN, O'CONNELL, GOODWIN and LUSK, JJ.
Plaintiff, a tenant of defendants, brought this action to recover for injuries she sustained when she fell into a concealed septic tank on the premises she had rented from defendants. Defendant Even Evenson is the only defendant actually involved in this case so we will refer to the singular 'defendant' throughout. The case was tried to the court without a jury. The court found for plaintiff. Defendant appeals. Defendant has contended in the trial court and here that there was no legal liability owed to plaintiff by defendant. The issue was appropriately raised in the trial court by motions to strike the specifications of negligence.
The rented residential premises were located in Idanha a small community in eastern Marion county. Defendants had acquired the property in 1951. It was apparently acquired for rental purposes. In the summer of 1952 defendant built the septic tank in question. It was constructed of cedar planks and buried in the lawn of the premises. It was located in a portion of the lawn that would normally be used by occupants of the house. None of the wood used was treated with a preservative to prevent rot or other deterioration. The top of the tank was constructed of a double layer of two inch cedar planking and was about eight inches below the level of the lawn surface. The lawn had been leveled. No one would be aware of the location of the tank unless told where it was situate. Defendant did not at any time tell plaintiff of the location of the tank.
The accident complained of occurred on September 19, 1960. Plaintiff had then occupied the premises for about two months. She chanced to walk over the spot below where the tank was buried and was suddenly precipitated into the tank beneath as though she had fallen through a trap door. Later it was evident that the planks which formed the top of the tank had rotted. Defendant as a witness, admitted the rot. He also testified that he was journeyman carpenter and that he had built maybe 25 or so septic tanks of similar construction within the community. In answer to the question: 'In your opinion as a journeyman carpenter was this sound construction?' He answered: He gave as his opinion that a tank built as this one would last 12 years, but he also stated that he had no basis for that opinion. Plaintiff testified that at some time prior to the accident, defendant had mentioned to her that the tank was too small for the number of people occupying the house. The only significance we attach to that evidence was that it indicated defendant was conscious of the tank.
Defendant relies on the rule that a landlord owes no duty to repair leased premises in the absence of agreement to do so and that a tenant takes the premises as he finds them. Defendant places particular reliance on Asheim v. Fahey et al., 1943, 170 Or. 330, 133 P.2d 246, 145 A.L.R. 861. In the Asheim case a ceiling had fallen and injured plaintiff. The court held that there could have been no duty upon defendant to inspect because inspection would have been futile. The court said that there was no evidence of a defect in the ceiling nor any condition known to defendant or observable by him to indicate a need for inspection. We think the facts of the case distinguish it from the case at issue.
The rule we believe should be followed in cases like this one has been best stated in Johnson v. O'Brien, 1960, 258 Minn. 502, 105 N.W.2d 244. We take this statement from the syllabus, prepared by the court:
'Where a landlord has information...
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Anderson v. Hamilton Gardens, Inc.
...Johnson v. O'Brien, 258 Minn. 502, 105 N.W.2d 244, 88 A.L.R.2d 577; Cummings v. Prater, 95 Ariz. 20, 386 P.2d 27; Freitag v. Evenson, 232 Or. 225, 375 P.2d 69; 32 Am.Jur., Landlord and Tenant, § 671. The rule is expressed in much the same language in 1 Tiffany, Landlord and Tenant § 86. The......
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