Hedekin v. Gillespie

• Decision Date: 13 October 1904
• Docket Number: No. 4,855.,4,855.
• Citation: 72 N.E. 143,33 Ind.App. 650
• Parties: HEDEKIN v. GILLESPIE.
• Court: Indiana Appellate Court

33 Ind.App. 650

72 N.E. 143

HEDEKIN

v.GILLESPIE.

No. 4,855.

Appellate Court of Indiana, Division No. 1.

Oct. 13, 1904.

Appeal from Circuit Court, Allen County; E. O'Rourke, Judge.

Action by Elinore Gillespie against Margaret C. Hedekin, administratrix. From a judgment for plaintiff, defendant appeals. Reversed.

Zollars & Zollars, for appellant. Samuel K. Ruick, for appellee.

HENLEY, J.

This action was commenced against one Thomas B. Hedekin. The appellee averred in her complaint that prior to October 19, 1901, she and her husband became tenants of Thomas B. Hedekin, and occupied the house and premises until the last-named date; that at the time they rented the house there was a walk leading from the house to an outhouse in the rear of the lot, which walk was dangerous by reason of the boards of which it was constructed being broken and warped; that many of the boards constituting said walk were smooth and apparently safe upon their upper side, but said boards were in fact rotten and decayed on their under surface, which fact was known to the appellee; that the said Thomas B. Hedekin, at the time the place was rented, agreed with appellee's husband that he would from time to time, as required, make all necessary repairs to said premises, and keep the same in good repair, and that in consideration of said promise appellee and her husband entered into and took possession of the premises, and occupied them. It is further alleged that the said Thomas B. Hedekin negligently failed and refused to keep the walk in repair, and that the appellee on the 19th of October, 1901, in walking over the walk, stepped upon a board, which, by reason of it being rotten, broke with her, causing her to fall, and injuring her without any fault on her part. After the complaint was filed, and before the cause was tried, the said Thomas B. Hedekin died, and upon appellee's suggestion the administratrix of his estate was substituted as a party defendant.

The judgment in this cause has no ground upon which to stand. The complaint does not state a cause of action, whether regarded as proceeding on the theory of tort or contract. If in tort the action would not survive against the personal representative of the deceased lessor, and if regarded as an action on contract the measure of damages would be the amount paid for making the repairs. And it was incumbent upon appellee to make the repairs upon the refusal of the landlord to do so, and look to the landlord for the cost of the same. But the complaint seeks to recover damages solely for a personal injury to appellee growing out of the alleged failure of the appellant decedent to repair the premises which appellee and her husband occupied as tenants.

The decided cases in the courts of appeal cover every feature of this case.

In Hamilton et al., Ex'rs, v. Feary, 8 Ind. App. 615, 35 N. E. 48, 52 Am. St. Rep. 485, this court said: “The appellee admits in her complaint that she knew of the existence of the excavation even before she took possession of the premises, and with such knowledge continued to occupy the property for the period of six months, though the appellant had, upon demand, failed and refused to make the repair which he had covenanted to make. The appellant could not have given the appellee any more information of the defect than she admits she possessed. To avoid this dilemma she undertakes to aver that the hidden portion of the defect consisted in the ruinous condition of the banks of the excavation, and not in the excavation itself, and she insists that it was the duty of the appellant to have disclosed these to her. She does not aver that the appellant had any peculiar knowledge of these other than she had herself; at least the facts pleaded show that she had ample time and opportunity for investigation, and there is no pretense that the appellant practiced any fraud or deception upon her in connection with the condition of the walls of the excavation. It must be clear, therefore, that if the cause of the injury was a latent, and not a patent, danger, it was no more patent to the owner than to the lessee, and it does not appear wherein he violated any duty in failing to apprise her of the same. If we should treat the complaint, therefore, upon the theory of a latent defect, we encounter the insurmountable obstacle that it fails to show the appellant guilty of any negligence; and hence, whether the appellee was guilty of contributory negligence or not, there is no right of action. See Buswell, Pers. Inj. § 84; Taylor, Landlord & Tenant, § 175a. But if we take the other end of the dilemma, and say that the particular duty which the appellant owed the appellee here was not to disclose to her the existence of the latent defect of the banks of the...