Guenther v. Jackson
| Decision Date | 06 April 1920 |
| Docket Number | 10,261 |
| Citation | 126 N.E. 873,73 Ind.App. 162 |
| Parties | GUENTHER v. JACKSON |
| Court | Indiana Appellate Court |
From Laporte Circuit Court; James F. Gallaher, Judge.
Action by Helen M. Jackson against John J. Guenther. From a judgment for plaintiff, the defendant appeals.
Reversed.
H. W Salwasser, Frank E. Osborn, Lee L. Osborn and Kenneth D Osborn, for appellant.
M. R Sutherland and R. N. Smith, for appellee.
Action by appellee against appellant to recover for injuries resulting from the alleged negligence of appellant in causing a step on a stairway in a building owned by him to be in a dangerous condition. Appellant's motion to strike out parts of the complaint was overruled, as was his demurrer to the complaint for want of sufficient facts. Appellant filed his answer in denial, and the cause was submitted to a jury for trial, resulting in a verdict and judgment for appellee. Errors assigned are: (1) Overruling motion to strike out part of complaint; (2) overruling demurrer to complaint; and (3) overruling motion for a new trial.
It is alleged in the complaint, in substance, that appellant was the owner of a certain building, of which entire building one Barnes was tenant; that appellee and her husband occupied the second story of said building as tenants of said Barnes; that a certain stairway was the only means of ingress and egress to the second story; that for a long time prior to the commencement of the tenancy of said Barnes, and prior to the commencement of the tenancy of appellee and her husband, the stairway leading to the rooms occupied by appellee had been defective and dangerous, in this, "that the first step below the platform from the top of said stairs was split diagonally across the same, and that at one end of said step the cleat or support holding the same in position had been removed, and left said step without any support at one end thereof;" that, sometime previous to the injury of appellee, "certain pipes had been constructed and built running from somewhere in the basement of said building along the west wall of said stairway, and that in the placing of said pipes, the cleat or piece of wood which held the west end of said step had been removed for the purpose of placing said pipes; that by reason of said cleat having been removed this step had been split and cracked and rendered unsafe;" that appellant at all times knew of said hidden defect, and that it was unknown to appellee; that, as appellee with due care was attempting to go up the stairway to her rooms, the step, by reason of said defect, gave way when she stepped thereon, causing her to fall, resulting in injuries to her ankle and thigh, as well as serious internal injuries. It is further averred that appellee "is a married woman, and the mother of two children, and was, prior to said injury, attending to her household duties and looking after the said children, one of which, on account of physical infirmities, requires her constant attention."
The court overruled appellant's motion to strike from the complaint the words "one of which, on account of physical infirmities, requires her constant attention," on the ground that the words were surplusage, and, if permitted to remain in the complaint, they would improperly tend to prejudice the jury in the trial of the cause. Averments such as those complained of have no proper place in a complaint in an action of this character. The motion to strike out should have been sustained. However, it is settled in this state that it is not reversible error to overrule a motion to strike out a part of a pleading. Woodhams v. Jennings (1905), 164 Ind. 555, 73 N.E. 1088; Ohio Valley Trust Co. v. Wernke (1913), 179 Ind. 49, 99 N.E. 734.
It is urged by appellant that the complaint is insufficient to withstand the demurrer, for the reason that it contains no allegation of a covenant on the part of appellant to repair. No other objection to the complaint was stated by appellant in his memorandum filed with the demurrer, or is presented on appeal. It will be observed that the complaint does not proceed upon the theory that there was a contractual obligation on the part of appellant, as landlord, to make repairs; but proceeds upon the theory that appellant, with knowledge of the latent defect which rendered the premises dangerous, negligently leased the same without disclosing the fact of such defect, and that appellee, who was a rightful subtenant, and who was ignorant of the defect could recover for injuries proximately resulting from appellant's said negligence. The demurrer was properly overruled. 2 Underhill, Landlord and Tenant § 480; Helwig v. Jordan (1876), 53 Ind. 21, 21 Am. Rep. 189; Hamilton v. Feary (1894), 8 Ind.App. 615, 624, 35 N.E. 48, 52 Am. St. 485; ...
To continue reading
Request your trial