Goodmaker v. Kelley

• Decision Date: 17 October 1957
• Citation: 154 Cal.App.2d 457,316 P.2d 746
• Court: California Court of Appeals Court of Appeals
• Parties: Sam GOODMAKER, Plaintiff and Appellant, v. William R. KELLEY and Junne H. Kelley, individually, and doing business as Peacock Terrace Apartments, Defendants and Respondents. Civ. 22416.

Page 746

316 P.2d 746

154 Cal.App.2d 457

Sam GOODMAKER, Plaintiff and Appellant, v. William R. KELLEY and Junne H. Kelley, individually, and doing business as Peacock Terrace Apartments, Defendants and Respondents.

Civ. 22416.

District Court of Appeal, Second District, Division 1, California.

Oct. 17, 1957.

Stephens, Jones, La Fever & Smith, Los Angeles, by Peter W. Irwin, Los Angeles, for appellant.

Thomas P. Menzies, James O. White, Jr., Los Angeles, for respondents.

WHITE, Presiding Justice.

Plaintiff commenced this action to recover damages from defendants for personal injuries sustained in a fall. On May 21, 1954, plaintiff leased from defendants' predecessor in interest, and occupied an upstairs apartment. Defendants purchased and took possession of the property which was an apartment-court sometime during the month of June, 1954. There were two stairways leading to plaintiff's apartment, one front stairway and another at the rear, both of which led only to the apartment of plaintiff, and were not used in common with any other tenants. At the top of the rear steps there was a landing approximately three feet square, and the back door of plaintiff's apartment opened onto this landing. At the foot of the stairs there was no doorway or other barrier. Plaintiff testified he had never used the rear stairway prior to the date of the accident except during the process of moving his belongings into the apartment when he originally took possession thereof.

After defendants took possession of the apartment-court premises, a swimming pool was constructed thereon which was completed in early July, 1954.

On July 24, 1954, plaintiff went into the swimming pool, later emerged therefrom and went up the back stairs leading to his apartment to secure a plastic raft which he had previously inflated and placed on the landing at the top of the stairway. Plaintiff testified that he was wearing a wet bathing suit, was barefooted and that his feet were wet. When he arrived at the landing he turned to pick up the raft, and in the process of turning, his feet went out from under him and he fell from the landing to the bottom of the stairs. The extent of his injuries are not at issue on this appeal since by stipulation the issue of liability was tried first, and judgment on that issue was in favor of defendants.

In testifying as to the appearance of the rear stairs on the day of the accident, plaintiff stated, 'It's very light, like a terrazzo, without color. 'It's a composition stairway. And when new, had a very slick finish to it, which wears off in time * * *.' Plaintiff further testified that he had never used either the front or rear stairs when they were wet. There seems to be no conflict in the testimony that the stairs were quite slippery when wet.

The cause was tried before the court without a jury, resulting in a judgment for defendants. From such judgment plaintiff prosecutes this appeal.

By his complaint, plaintiff alleged that defendants 'had and reserved to themselves the control of various portions of said apartment house, to wit, the vestibules, walkways and stairways which were used in common by all of the tenants and others lawfully within the premises.' It was further alleged, 'That the defendants, and each of them, so negligently, carelessly and unlawfully constructed, maintained and kept the said stairways and so negligently and carelessly permitted said stairways to become so slick and slippery and otherwise defective and out of repair as to be dangerous to the life and limb of persons traversing said stairways as defendants, and each of them, well knew and of which condition defendants, and each of them, had actual and constructive notice.'

By their respective answers, defendants generally and specifically denied plaintiff's allegations of negligence and also denied 'that said stairway, or either of them, were under the exclusive care and control of defendants * * *.' As their first and second affirmative defenses, defendants pleaded contributory negligence and assumption of risk upon the part of plaintiff.

After completion of the trial and argument of counsel, judgment was entered in favor of defendants in accordance with findings of fact that defendants were not careless or negligent; that defendants did not reserve to themselves the control of the walkways pertinent to the apartment leased by plaintiff; that any injuries or damage sustained by plaintiff were caused and proximately contributed to by his carelessness and negligence; 'that plaintiff had full knowledge of the danger, if any, attendant in the use of the premises, and voluntarily assumed whatever risk was attendant in their use.'

Appellant's first ground for reversal is that the court erred in holding that the back stairway and landing were part of the demised premises. In this regard, he asserts that respondents retained the care and control of the stairs leading to his apartment and thus were under a duty to exercise reasonable care and control of such stairs.

In his attempt to show such right of care and control, appellant introduced the lease into evidence, with particular reference to paragraphs Fifth and Sixth thereof. We find nothing therein which supports appellant's claim. These provisions of the lease simply bind appellant, as tenant, to take 'good care' of the apartment and to commit no waste therein; to make no alterations in the premises and to repair any damage thereto caused by appellant's misuse or neglect, and other covenants generally found in similar leases. The Sixth paragraph simply allows respondent landlord free access to the leased premises for certain stated purposes. We see no escape from the conclusion that the steps passed under the lease, to appellant. A lease of premises such as those involved herein, passes with it as an incident thereto, everything necessarily used with or reasonably necessary to the enjoyment of the part demised. As heretofore pointed out, the stairway was the only means of ingress to and egress from the rear entrance to appellant's apartment (Bellon v. Silver Gate Theatres, 4 Cal.2d 1, 11, 47 P.2d 462; Owsley v. Hammer, 36 Cal.2d 710, 716, 227 P.2d 263, 24 A.L.R.2d 112).

In the case at bar respondents did not reserve the stairway for the use of other tenants in common with appellant, thereby becoming bound to use ordinary care to keep it in a safe condition. Appellant's own testimony substantiates this. We are satisfied that in the absence of such reservation, respondents can be held liable only on proof of a hidden defect of which they had knowledge and appellant had no knowledge. The stairways being an integral part of the rented premises, they were no more under the control of the landlord than any other part thereof. Directly in point in this regard are the cases of Ellis v. McNeese, 109 Cal.App. 667, 672, 293 P. 854, and Epperson v. Mendes, etc., 141 Cal.App.2d 581,...