Godbey v. Barton

• Decision Date: 17 January 1939
• Docket Number: 28139.
• Citation: 86 P.2d 621,184 Okla. 237,1939 OK 19
• Parties: GODBEY v. BARTON et al.
• Court: Oklahoma Supreme Court

86 P.2d 621

184 Okla. 237, 1939 OK 19

GODBEY v. BARTON et al.

No. 28139.

Supreme Court of Oklahoma

January 17, 1939

Syllabus by the Court.

Where the right of possession and enjoyment of lands with a dwelling house thereon passes to a lessee, in the absence of fraud or concealment by the lessor as to some defect known to him and unknown to the lessee, the rule of caveat emptor applies, and the lessee takes the premises, exclusive of the dwelling, in whatever condition they may be in, thus assuming all risk of personal injury from defects therein, and the rule applies to other members of the lessee's family.

Appeal from District Court, Rogers County; E. A. Summers, Judge.

Action by J. W. Barton and Hazel Barton against C. F. Godbey to recover damages for the alleged wrongful death of plaintiffs' infant son as result of fall down cistern on premises owned by defendant, and rented by plaintiffs. From a judgment in favor of the plaintiffs, the defendant appeals.

Judgment reversed and cause remanded with directions to dismiss.

C. B Holtzendorf, of Claremore, for plaintiff in error.

H. Tom Kight and H. Tom Kight, Jr., both of Claremore, for defendants in error.

OSBORN Justice.

This action was instituted in the District Court of Rogers County by J. W. Barton and Hazel Barton, hereinafter referred to as plaintiffs, against C. F. Godbey, hereinafter referred to as defendant, to recover damages for the alleged wrongful death of Richard Nelson Barton, infant son of plaintiffs. Issues were joined and the cause tried to a jury. A verdict was returned in favor of plaintiffs. From a judgment on the verdict, defendant has appealed.

Defendant was the owner of a certain dwelling house located in the City of Claremore. Pursuant to an oral rental contract with defendant, plaintiffs moved on the premises with their family of four children in December, 1932. The following spring plaintiffs discovered that there was an open cistern on the premises located about fifty feet from the house, which had been concealed by tall weeds. The cistern was about fifteen feet deep and about five feet across the top and had about six feet of water in it. On November 18, 1933, the infant child, Richard Nelson Barton, who at that time was of the age of twenty months, fell into the cistern and was drowned. Plaintiffs thereafter continued to occupy the premises until January, 1935. On February 8, 1935, this action was instituted.

The principal assignments of error are that the trial court erred in overruling the demurrer to the petition and in overruling defendant's motion for an instructed verdict.

Defendant refers to Sections 10926 and 10927, O.S.1931, 41 Okl.St.Ann §§ 31, 32, providing that the lessor of a "Building" intended for the occupation of human beings must put it into a condition fit for occupation and repair all subsequent dilapidations thereto, except such as were caused by the ordinary negligence of the lessee, and in the event of the failure of the lessor to make such repairs the lessee should make the same and deduct the expense thereof from the rent. We are referred to a number of authorities construing these statutes and holding that the remedy provided thereby is exclusive and that a landlord is not liable for personal injuries sustained by an occupant of a building caused by latent defects therein. See Lavery...