Gumberts v. Greenberg
| Decision Date | 19 November 1953 |
| Docket Number | No. 18374,18374 |
| Parties | GUMBERTS v. GREENBERG. |
| Court | Indiana Appellate Court |
Warren, Merrill & Combs, Wilbur F. Dassel, Evansville, for appellant.
Joseph B. Minor, Evansville, Kenneth W. Weyerbacher, Boonville, for appellee.
The appellee seeks damages for personal injuries through a complaint in which she alleges in substance that on December 9, 1949, the appellant owned a building in Evansville, Indiana, divided into two apartments used as dwellings. That on said date and for some time prior thereto the appellee, as the appellant's tenant, occupied the apartment on the first floor of said building and the second floor, during all of said time, was occupied by the appellant himself. That to the northwest of said building and adjacent thereto the appellant owns and maintains a concrete driveway running from the street to a garage on the rear portion of his lot. That through the years said driveway had become cracked and in places the concrete had broken out leaving holes therein which the appellant had filled with pieces of loose brick. That some time in the spring of 1949, the appellee notified the appellant that said driveway was in a bad state or repair and should be repaved which he then and there agreed to do. That the appellant failed to carry out his agreement but, on the contrary, permitted said driveway to remain in the unsafe condition above described. That on December 9, 1949, at 10:30 p. m. the appellee alighted from an automobile in said driveway preparatory to entering her apartment. The night was dark and, because of rain and sleet in the air, the visibility was bad. As she proceeded toward her apartment she stepped into one of said holes in the driveway which had been filled with loose brick as aforesaid and her ankle turned throwing her to the ground with such force that she sustained a comminuted fracture of the right wrist which ultimately necessitated an open reduction, all of which was attended by great expense and much physical pain and suffering. The appellant answered in conformity to Rule 1-3 and in addition thereto pleaded full and complete settlement of the cause of action sued on. By way of reply the appellee admitted such settlement agreement but alleges that it was entered into through the mutual mistake of both parties as to the extent of her actual injuries and was formally rescinded by her before this suit was instituted. A jury trial of these issues resulted in a verdict and judgment for the appellee in the sum of $1,200.
The appellant rests his case for reversal on two propositions. First he contends that the complaint is based on the theory that he made a contract with the appellee whereby he agreed to repair the driveway in question and that he breached the same by a total failure to perform while the proof, if it supports a recovery on any theory, shows nothing more than the negligent breach of a common-law duty. In other words, the contention is that the suit is on contract and the recovery in tort which, the appellant says, constitutes a fatal variance and renders the jury's verdict contrary to law. It seems to be the well-settled rule in Indiana that a tenant cannot recover for personal injuries caused by the defective condition of the leased premises unless the landlord agrees to repair and is negligent in so doing. Franklin Fire Ins. Co. v. Noll, 1945, 115 Ind.App. 289, 58 N.E.2d 947; Guenther v. Jackson, 1922, 79 Ind.App. 127, 137 N.E. 582; Roehrs v. Timmons, 1902, 28 Ind.App. 578, 63 N.E. 481. It is on this principle of law that the appellee defends the verdict as indicated by the following statement in her brief: 'The theory of the amended complaint is that the landlord, upon being notified of the condition of the driveway, agreed to repair the same but made said repairs in a careless and negligent manner.'
If there is any evidence in the record to sustain a verdict on this theory of liability it is obvious that we are confronted with the question of variance as the complaint makes no mention of repairs negligently made but on the contrary charges that none whatever were attempted in discharge of the agreement and the driveway was permitted to remain in its then unsafe condition. An essential element of the appellee's right to recover, on either theory, is an agreement by the appellant to repair. We have been unable to find any evidence bearing on this subject except the appellees own version of the matter as appears from the following excerpt from the record:
From this incident and the fact that loose bricks were subsequently placed in the holes in the driveway by some one, whose identity the evidence fails to disclose, the appellee contends the jury was justified in inferring that an agreement for the repair of the driveway existed between the parties. We do not think that because a landlord, after notice of the...
To continue reading
Request your trial
-
Cruz v. American Airlines
...ground of mutual mistake.... A unilateral mistake will not invalidate a contract.") (citations omitted); Gumberts v. Greenberg, 124 Ind.App. 138, 115 N.E.2d 504, 507 (Ind.Ct.App.1953) (holding that mutual mistake may support a decision to rescind a release, but that unilateral mistake does ......
-
Indiana Bell Telephone Co., Inc. v. Mygrant
...release which he executed without knowledge of the existence or severity of his injuries. In Indiana two cases, Gumberts v. Greenberg (1953), 124 Ind.App. 138, 115 N.E.2d 504; and Crane Co. et al. v. Newman (1941), 111 Ind.App. 273, 37 N.E.2d 732, have dealt with the legal ramifications of ......
-
Beaver v. Harris' Estate
...If there was a mistake, it was a unilateral mistake, rather than a mutual mistake. Johnson v. Holbrook, supra; Gumberts v. Greenberg, 124 Ind.App. 138, 115 N.E.2d 504 (1953); Diltz v. Sherrick, 108 Ohio App. 188, 161 N.E.2d 93 (1958); Wheeler v. White Rock Bottling Co. of Oregon, 229 Or. 36......
-
Ruggles v. Selby
...release which expressly applies to unknown conditions, in the absence of mutual mistake, fraud or overreaching.' In Gumberts v. Greenberg, 124 Ind.App. 138, 115 N.E.2d 504, the third case on which defendants place great reliance, plaintiff knew that she had a fractured wrist at the time the......