Greco v. 7-Up Bottling Co. of Pittsburgh

• Decision Date: 10 October 1960
• Citation: 165 A.2d 5,401 Pa. 434
• Parties: Albert J. GRECO v. 7-UP BOTTLING COMPANY OF PITTSBURGH, Sigmund Yahr and Harold S. Sauers, t/a Real Estate Maintenance Company, Appellants.
• Court: Pennsylvania Supreme Court

Page 5

165 A.2d 5

401 Pa. 434

Albert J. GRECO v. 7-UP BOTTLING COMPANY OF PITTSBURGH, Sigmund Yahr and Harold S. Sauers, t/a Real Estate Maintenance Company, Appellants.

Supreme Court of Pennsylvania.

Oct. 10, 1960.

Rehearing Denied Nov. 23, 1960.

George Y. Meyer, George I. Buckler, Pittsburgh, for appellant, Sigmund yahr.

V. C. Short, Clem R. Kyle, Pittsburgh, for appellant, Harold S. Sauers.

Sanford M. Chilcote, Dickie, McCamey, Chilcote & Robinson, Pittsburgh, for appellants, 7-Up Bottling Co. of Pittsburgh, and Sigmund Yahr.

McArdle, Harrington & McLaughlin, D. C. Harrington, James P. McArdle, Gene K. Lynch, Pittsburgh, for Albert J. Greco.

Before BELL, MUSMANNO, BENJAMIN R. JONES, COHEN and EAGEN, JJ.

BENJAMIN R. JONES, Justice.

In a trespass action for personal injuries the court below upon the plaintiff's motion and after a jury verdict against one defendant and in favor of the two other defendants, granted a new trial as to all three defendants and refused a motion for judgment n. o. v. filed by the defendant who had lost the verdict. This action of the court below is the basis of these three appeals.

On August 25, 1952, Sigmund Yahr owned a three-story building located at 5850 Ellsworth Avenue, Pittsburgh, a building which, at that time and during a seven year period prior thereto, was under lease to the 7-Up Bottling Company [herein called Bottling Company]. In February 1952, Yahr had entered into a contract with Harold S. Sauers, trading as Real Estate Maintenance Company [herein called Maintenance Company] to paint certain window frames on the exterior of the building and, pursuant to this contract, Albert Greco [plaintiff] and John Pappas, Maintenance Company employees, were at the time of accident--August 25, 1952--engaged in performing this work. At the time of accident Greco and Pappas were placing a thirty-six foot extension ladder against the sill of a window located on the third floor of the building, this window being approximately twenty-five feet above the surface of the ground. The ladder consisted of two eighteen-foot sections and, in order to reach this third floor ladder against the sill of a window located be extended seven or eight feet above the other section. In so doing, Pappas held the ladder with his back to the building and Greco, standing on the second or third rung from the botton of the ladder, was manually pushing the extension upward. Greco alleges that, when the top of the ladder came in contact with the window sill, a piece of wood ¹ and a cast iron sashweight became dislodged, fell to the ground and one or the other or both struck him on the head inflicting severe injuries.

Greco instituted a trespass action in the Court of Common Pleas of Allegheny County against Yahr and the Bottling Company and Yahr then joined the Maintenance Company as an additional defendant. At trial the jury returned a verdict of $15,000 in favor of Greco and against Yahr as well as verdicts against Yahr and in favor of the Bottling Company and the Maintenance Company. As to all three defendants the court below granted a new trial and refused Yahr's motion for judgment n. o. v. From these orders the present appeals were taken.

Yahr takes the position that he is entitled to judgment n. o. v. inasmuch as there was insufficient evidence upon which the jury could find that he, the owner out of possession of the premises, was guilty of any negligence. The Bottling Company contends: (1) that since Yahr, the building owner, without its knowledge arranged to have the Maintenance Company paint the exterior woodwork of the building, it, the tenant in possession, would not be liable to Greco, an employee of the independent painting contractor, by reason of any latent defective condition of the window frame; (2) that, inasmuch as the Bottling Company's liability was submitted under proper instructions to the jury and inasmuch as the jury absolved it of any liability and held Yahr, the building owner, liable, the grant of a new trial as to the Bottling Company was an abuse of discretion; (3) the absence of one of Greco's trial counsel from the court room on two or three occasions during the trial did not justify the grant of a new trial. The Maintenance Company's position was that there was no evidence of any negligence on its part and that the court below abused its discretion in granting a new trial as to it.

The opinion of the court below set forth its rationale for the grant of a new trial: (1) the verdict of $15, 000 was inadequate; (2) the absence on two or three occasions of Greco's chief trial counsel because of an engagement in the Federal court deprived Greco of the legal advice and counsel to which he was entitled; (3) the jury's verdict exculpating the Bottling Company was against the charge of the court and the evidence.

In considering these appeals the scope of our appellate review varies. Upon Yahr's appeal from the refusal of the court below to grant his motion for judgment n. o. v., the testimony must be read in the light most favorable to Greco, all conflicts therein must be resolved in his favor and he must be given the benefit of all facts and reasonable inferences therefrom deducible: Kuhns v. Brugger, 390 Pa. 331, 335, 135 A.2d 395, 68 A.L.R.2d 761. However, in considering the appeals from the grant of a new trial, this rule does not apply (Sherman v. Manufacturers Light & Heat Co., 389 Pa. 61, 68 (footnote), 132 A.2d 255 and cases therein collected).

Greco v. Yahr

Yahr, the building owner, technically had been out of possession of this property for approximately seven and a quarter years. The Bottling Company's possession arose by virtue of two leases, the first whereof granted a term from May 1, 1945 to April 30, 1951 and the second whereof granted a term from May 1, 1951 to April 30, 1954. Under the first lease, the Bottling Company was bound to 'maintain at [its] own expense the premises and every part thereof in good repair * * *'; insofar as presently pertinent, Yahr was obligated to paint the exterior of the building and to 'keep in good repair and condition the exterior part of the building, including but not limited to the foundation and other exterior portions, the roof, the sidewalks and the alley * * *' Under the second lease, the Bottling Company agreed to 'maintain at [its] own expense the premises and every part thereof in good repair * * *' without exception; the lease also provided that Yahr should 'not be liable for any injury or damage to [the Bottling Company] or to any person or to any property at any time on said premises or building from any cause whatever which may arise from the use or conditions of said premises or building * * *' and that Yahr had 'let the premises in their present condition, and without any representation, by him or in his behalf as to their present or future condition which can affect the rights and obligations created by this [lease]' and that the Bottling Company would 'repair and replace all broken windows throughout the building'. On February 14, 1952 ² Yahr entered into a contract with the Maintenance Company for the painting of the exterior woodwork of the building for $387. ³

Pursuant to such contract, the Maintenance Company began work on Saturday, August 23, 1952, and on that date as well as on Monday, August 25, 1952--the date of accident--its employees, including Greco and one Pappas, were on the premises engaged in the painting work. As to the observability of any defective condition in the window frames there was considerable uncontradicted testimony: Sauers, owner of the Maintenance Company, stated that, aside from the need of paint, he could not observe any defects in the window frames; Schell, a Maintenance Company employee, testified that he observed nothing on his inspection previous to the performance of the work which indicated a defective condition of the window frames; Greco, having painted five windows on the same side of the building, one of which was only ten feet from this particular window, testified he observed nothing which indicated a defective condition of this particular window frame; Pappas, standing on the ground and observing the window frame, saw nothing wrong with it; Yahr and all the Bottling Company witnesses testified there was nothing noticeably wrong with the window frame. The top of the ladder had been placed against the window sill immediately prior to the accident and, while there is no evidence as to the object which struck Greco, there was testimony that immediately after the accident a portion of window frame was on the ground on one side of the ladder and a heavy iron sashweight on the other side of the ladder. The portion of window frame found on the ground gave the appearance of being extensively rotted and there were no nails in the wood, the nails apparently having 'rusted out' from the wood.

Under the original lease, Yahr was clearly obligated to make repairs to the exterior of the building, including the window frames, but under the lease in existence at the time of accident Yahr had no such obligation. The record contains no evidence whatsoever that Yahr knew of any defect in the window frame and the testimony is clear that the condition of this window frame was a latent condition, a condition not discoverable by visual inspection and discoverable only by removing the frame from the sidewall or by a manual rapping thereon.

Yahr's duty was to warn business visitors or invitees of defects which were either known to him or which were discoverable by a reasonable imspection on his part. ⁴ Under the present factual situation Yahr assumed the duty to keep the exterior of this building, including window frames, in a reasonably safe condition and, therefore, if there were any defects known or discoverable by the exercise of reasonable care and diligence, he was obligated to warn any business visitor or invitee, such as the Maintenance Company and its...