Hardin v. Elvitsky

• Decision Date: 18 February 1965
• Citation: 42 Cal.Rptr. 748,232 Cal.App.2d 357
• Court: California Court of Appeals Court of Appeals
• Parties: Helene HARDIN, Plaintiff and Respondent, v. Anna F. ELVITSKY, Defendant and Appellant. Civ. 21704.

Page 748

42 Cal.Rptr. 748

232 Cal.App.2d 357

Helene HARDIN, Plaintiff and Respondent, v. Anna F. ELVITSKY, Defendant and Appellant.

Civ. 21704.

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

Feb. 18, 1965.

Leonard J. R. Davis, San Francisco, for appellant.

Ernest E. Emmons, Jr., San Francisco, for respondent, Thomas S. Harte, San Francisco, of counsel.

MOLINARI, Justice.

Statement of the Case

In this action for damages for personal injuries allegedly sustained by plaintiff as a result of a fall on a stairway on defendant's premises, defendant appeals from the judgment entered after a jury verdict awarding plaintiff damages in the amount of $1,000, from the order denying defendant's motion for a judgment notwithstanding the verdict, ¹ and from the order granting plaintiff's motion for a new trial on the sole ground of inadequacy of damages. ² In her brief defendant states that she is also appealing from the order allowing costs. Both parties have argued the propriety of this order in their respective briefs. The record discloses that no appeal was taken from this order. Since the judgment rendered in the instant case was one which could have been rendered in a court of inferior jurisdiction, plaintiff was not entitled to costs unless the trial judge in his discretion so ordered. (Code Civ.Proc. § 1032, subd. (d); Sweet v. Johnson, 169 Cal.App.2d 630, 633-634, 337 P.2d 499.) The order for costs in the instant case was made pursuant to a motion made after the judgment. Accordingly, it was a special order after judgment and as such was appealable. (Code Civ.Proc. § 963, subd. 2; see Smallpage v. Turlock Irrigation Dist., 26 Cal.App.2d 538, 541, 79 P.2d 752; Oak Grove School Dist. v. City Title Ins. Co., 217 Cal.App.2d 678, 710-711, 32 Cal.Rptr. 288.) Since the notice of appeal limits the power of the reviewing court, an order from which an appeal has not been taken will not be reviewed. (Smith v. Halstead, 88 Cal.App.2d 638, 640, 199 P.2d 379; Palomar Refining Co. v. Prentice, 47 Cal.App.2d 572, 574, 118 P.2d 322; Richards v. Flower, 193 Cal.App.2d 233, 238, 14 Cal.Rptr. 228.) In the light of these principles, therefore, the propriety of the order allowing costs cannot be reviewed. Although not controlling here, it may be observed that insofar as disclosed by defendant's brief there is no merit to the claim of error in this respect since defendant points to nothing in the record from which we could determine that the trial judge acted in abuse of his discretion in awarding plaintiff costs.

The assignment of error and the issues for determination on this appeal are, accordingly, narrowed to the following: That the trial court erred in giving certain instructions, in refusing to give certain instructions requested by defendant, and in denying defendant's motions for a judgment notwithstanding the verdict and for a new trial. ³

The Record

On the evening of December 31, 1960, at about 6 p. m., plaintiff went to premises, consisting of a duplex dwelling owned by defendant in Calistoga, California, to visit a Mrs. Chelepova, who resided in one of the duplexes. Plaintiff testified that the purpose of her visit was to give Mrs. Chelepova a shawl in return for the latter's gift of some wine to plaintiff's husband, and to order a 50 cent quart bottle of wine from Mrs. Chelepova. When plaintiff arrived at the premises it was not yet dark. She entered the duplex on the south side by means of stairs, exterior to the dwelling, leading to the kitchen door. These stairs consisted of two concrete steps and a bottom step consisting of a wooden box with two boards nailed thereon. There was no lighting on the stairway, nor did the stairway have a handrail. When plaintiff left the duplex about an hour later she did so by way of these same stairs. It was then dark outside, and the only illumination upon the stairs was that provided by the light from the kitchen through the open doorway. As plaintiff stepped down upon the temporary step, the board gave way under her footing and she fell, allegedly injuring her back and side, aggravating a preexisting arthritic condition, and suffering fright and shock.

The duplex dwelling had been built by defendant in 1953. Mrs. Chelepova, who was the sole and exclusive occupant of the property at the time of plaintiff's accident, had lived in the duplex for approximately nine years prior to that time. During the first four or five of those years, the second unit of the dwelling had also been occupied--first, by defendant's mother for approximately four years and then by a Mr. Tarantiev for a short period of time. Mrs. Chelepova's tenancy was not pursuant to any written lease and, according to the testimony of defendant, the amount of rent which Mrs. Chelepova paid throughout her tenancy up to the year before the trial was $25 or $35 a month, including utilities. Defendant further testified that she utilized the services of Mrs. Chelepova as watchman and agent, stating: 'That is why she lived there so cheaply * * *.' Defendant also testified that Mrs. Chelepova, under instructions from defendant, made the arrangements for the care of the grass, and that defendant then paid the person who performed the services directly.

Defendant's testimony as to her knowledge of the condition of the stairway is conflicting: At the trial she testified that she lacked any knowledge of the temporary step; however, in her deposition, which was read at the trial, she testified that she was aware of the condition of the stairway, had used the stairway in question when she visited the property, and had intended to construct a permanent third step.

The Instructions

Defendant claims that the court erred in the giving of seven of plaintiff's instructions, and in its refusal to give four submitted by defendant. With respect to the instructions given, defendant makes no claim that they are not correct expositions of the principles enunciated, but asserts that they are not applicable to the facts of the instant case.

The thrust of defendant's claim of error with respect to the instructions given is directed to plaintiff's instructions No. 20 ⁴ and No. 22. ⁵ These instructions, in essence, advise the jury that there was in effect at the time of the accident in question certain Safety Orders of the Division of Industrial Safety of the State of California relating to stairways and handrails, and that if defendant violated such safety orders a presumption arose that she was negligent. With respect to the effect of the presumption, the jury was also instructed that it was not conclusive but could be overcome by other evidence showing that, under all the circumstances surrounding the event, the conduct in question was excusable or justifiable.

Before proceeding to discuss the propriety of this instruction it would be well to consider the theory upon which plaintiff based her cause of action. Neither the complaint nor the pretrial order indicate with clarity or exactness the theory upon which plaintiff sought recovery. The allegations of the complaint and plaintiff's contentions as disclosed by the pretrial order are that plaintiff visited a tenant in a duplex owned by defendant and that as she was leaving the premises he fell on stairs which were negligently installed and maintained by defendant. Accordingly, when the cause proceeded to trail in this posture, plaintiff's apparent theory of recovery was that defendant, the owner and lessor of the duplex had retained control over the stairway on which plaintiff was allegedly injured, and that on that basis plaintiff was an invitee of defendant.

It is the general rule that, in the absence of fraud or deceit on the part of the landlord in concealing latent defects of which he has knowledge, and in the absence of a direct covenant to make repairs, the landlord is not liable for injuries to the person or property of the tenant or his invitees or employees caused by defects in the leased premises. (Pfingst v. Mayer, 93 Cal.App.2d 265, 275, 208 P.2d 1002; Harris v. Joffe, 28 Cal.2d 418, 423, 170 P.2d 454; Neuber v. Royal Realty Co., 86 Cal.App.2d 596, 610-611, 195 P.2d 501; Shotwell v. Bloom, 60 Cal.App.2d 303, 309-310, 140 P.2d 728.) This general rule is subject to the exception stated in Johnston v. De La Guerra Properties, Inc., 28 Cal.2d 394, 399, 170 P.2d 5, 7, as follows: 'One who leases a part of the premises, retaining control of other portions such as common walks or passages which the tenant is entitled to use, is subject to liability to persons lawfully on the land with the consent of the tenant for damages caused by a dangerous condition existing on the part under the owner's control, if by reasonable care he could have discovered the condition and made it safe. [Citations.] Accordingly, invitees of the tenant are regarded as being invitees of the owner while on passageways which invitees of the tenant have a right to use and which are under the owner's control. [Citations.]' (See Harris v. Joffe, supra, 28 Cal.2d p. 423, 170 P.2d 454; Pfingst v. Mayer, supra, 93 Cal.App.2d p. 272, 208 P.2d 1002.)

We are satisfied from a consideration of the allegations of the complaint, the contentions set forth in the pretrial order, and the evidence adduced at the trial that plaintiff was not asserting or claiming that defendant fraudulently concealed latent defects of which she had knowledge, or that she covenanted to make repairs upon the demised premises. It appears, however, that plaintiff was relying upon the exception to the general rule occurring when the injury is suffered on a portion of the premises over which the landlord has retained control. The important issue at the trial, therefore, was whether defendant retained control of the stairs in question. If defendant retained such control, plaintiff was, as to defendant an invitee. If defendant did not retain such control, eliminating consideration of safety rule violations, to which we...