Guenther v. Jackson
| Decision Date | 14 December 1922 |
| Docket Number | 11,212 |
| Citation | 137 N.E. 582,79 Ind.App. 127 |
| Parties | GUENTHER v. JACKSON |
| Court | Indiana Appellate Court |
From St. Joseph Circuit Court; Walter A. Funk, Judge.
Action by Helen M. Jackson against John J. Guenther. From a judgment for plaintiff, the defendant appeals.
Reversed.
Frank E. Osborn, Lee L. Osborn, Kenneth D. Osborn and Alfred J Link, for appellant.
Ralph N. Smith and Ben C. Rees, for appellee.
This is the second appeal in this cause. See Guenther v Jackson (1920), 73 Ind.App. 162, 126 N.E. 873. After reversal appellee filed an amended complaint, alleging the ownership of a certain building by appellant, the leasing of the same to one Barnes and the subleasing of the second story of the building by Barnes to appellee's husband with whom she resided, that prior to the commencement of the tenancy of Barnes and prior to the occupancy of said premises by appellee the stairway leading to the rooms occupied by her were in an unsafe condition in that, one of the steps was cracked and covered with a mat which concealed the view of the crack from appellee or others passing over the stairs that appellant knew of "such unsafe condition of said step and stairway, and had known of the same a long time prior to the injury to plaintiff, and for a sufficient length of time to have repaired same;" that appellant negligently allowed the step to remain in said unsafe condition; that appellee without any knowledge of such unsafe condition, and while going up said stairs was injured on account of the said defective step giving way. It is also alleged that previous to the tenancy of Barnes certain pipes had been placed in the building from the basement and running through the end of the defective step. But there is no allegation that this created any latent or hidden defect or that appellee had no knowledge of its existence.
Appellant's first contention is that the court erred in overruling his demurrer to the amended complaint. The theory of the pleader in drafting this complaint is not altogether clear. While it is alleged that there was a latent defect in the stairway prior to the leasing to Barnes, there is no allegation that appellant had any knowledge of such unsafe condition when he leased the premises to Barnes, or that, having such knowledge, he did not inform Barnes of such unsafe condition. The specific charge against appellant is that he knew of the unsafe condition of the stairs a sufficient length of time prior to appellee's injury to have repaired the same, but that he negligently allowed it to remain in an unsafe condition, and that appellee was injured as a result of such negligence.
An examination of the record shows that the cause was tried upon the theory that the complaint alleged the existence of a latent defect, knowledge of the existence of such defect by appellant when he rented the premises to Barnes, a failure on the part of appellant to notify Barnes of such defect and the injury to appellee as a result of the failure of appellant to notify Barnes of the latent defect.
Appellee insists that the law of this case, in so far as the overruling of the demurrer to the complaint is concerned, was settled by this court on the former appeal. The complaint on which the cause was first tried, and which was on appeal held good, alleged that, in placing the pipe through the step in the stairway, a cleat which held the west end of the step had been removed, and that the removal of this cleat caused a latent defect which caused the step to be unsafe. Appellant's knowledge of the unsafe condition prior to renting to Barnes and want of knowledge of the part of appellee was also alleged in the original complaint.
In the complaint now under consideration no reference is made to the defect stated in the first complaint, and the only objection urged to the complaint on the former appeal was that there was no allegation of a covenant on the part of appellant to repair. It was there held that the complaint did not proceed upon the theory that there was a contractual obligation on the part of appellant to repair, but upon the theory that appellant with knowledge of a latent defect leased the building without disclosing the fact of such defect. The court on the former appeal correctly held the complaint good as against the objection then urged. But appellant on this appeal contends that the demurrer to the amended complaint should have been sustained, because there is no allegation that appellant knew of the alleged defect at the time when he leased the premises to Barnes. This objection, however, was not stated in the memorandum filed with appellant's demurrer, and was therefore waived. Acts 1911 p. 415, § 344, cl. 6, Burns 1914.
The general statement in the memorandum to the effect that the complaint failed to state facts sufficient to show a legal duty on the part of appellant toward appellee is too general to present any question. The memorandum accompanying a demurrer must be specific in stating wherein the...
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