Holtam v. Sachs

• Decision Date: 28 October 1963
• Docket Number: No. 2,No. 19726,19726,2
• Citation: 193 N.E.2d 370,136 Ind.App. 231
• Parties: Edward B. HOLTAM, Appellant, v. Inez Pearl SACHS, Appellee
• Court: Indiana Appellate Court

Page 370

193 N.E.2d 370

136 Ind.App. 231

Edward B. HOLTAM, Appellant, v. Inez Pearl SACHS, Appellee.

No. 19726.

Appellate Court of Indiana, Division No. 2.

Oct. 28, 1963.

Rehearing Denied Dec. 2, 1963.

James E. Rocap, Jr., Indianapolis, James E. Rocap, Sr., Rocap, Rocap & Reese, Indianapolis, of counsel, for appellant.

Gilbert Butler, Martinsville, John H. Daily, Wilson S. Daily and Daily & Daily, Indianapolis, for appellee.

MOTE, Chief Justice.

Appellee recovered a damage judgment of fifteen thousand ($15,000.00) dollars on a jury verdict for personal injuries sustained by her in falling down a basement stair of the premises which she was inspecting at the invitation of appellant with the possibility of renting as a residence from the appellant, the owner thereof. The record indicates that on May 1st, 1956, appellee answered a newspaper advertisement by calling one of the telephone numbers accompanying the advertisement. She was promptly authorized and permitted to inspect the premises located at 906 English Avenue, in the city of Indianapolis, Indiana, and held out in said advertisement to be available for rent.

The issues were presented by appellee's complaint, an answer by appellant in two paragraphs, the first, in denial under Rule 1-3 of the Supreme Court, and the second, which alleged that said appellee was guilty of contributory negligence, thus not entitling her to recover, and a reply in denial to the second paragraph of answer.

The cause was submitted on the issues thus formed, preliminary instructions given to the jury, evidence heard, final instructions to the jury given, and verdict and judgment for appellee, as stated, from which this appeal is brought, after appellant's motion for new trial was overruled.

A careful review and analysis of the evidence, in addition to what we have heretofore stated, reveals that appellant owned a fairly large building located at 906-908 English Avenue, in the city of Indianapolis, which was divided by a partition wall, thus to make the two sides thereof substantially of the same dimensions and with like facilities and space. Our further description will pertain to the west side of said building, or 906 English Avenue, which is on the north side of the street facing south. There was a commercial room at the front approximating thirty-eight (38) feet by thirty (30) feet, part of which may have been used by a church organization. Appellant owned the building immediately to the west of said 906 English Avenue, and there was a narrow walk way between. To the north of the building in question, and just north of the north wall of said commercial room, there was an entrance to the building opening into a hall which was perhaps four (4) or five (5) feet in length. At the east end of the hall there was a stairway to the second floor. The entrance had a door and immediately inside thereof and off the hall were two doors, one to the north into certain facilities, and one to the south into the store room. This last mentioned door, on the occasion in question, appears to have been closed, with a small nail bent over a hasp which, in some measure, made the said closed door secure. Appellee turned the nail which held the hasp by using a file about twelve (12) inches long, which she found close by on the floor. She entered the large commercial room, inspected the same, and then entered an opening in the south wall thereof, seeking a stairway to the second floor.

The opening lead to a stairway to the basement instead, and appellee fell down the same causing injuries for which she sought damages in this action. The basement stairway was immediately to the left of this opening and it was dark enough that appellee was unable to see as she entered the said opening. The said basement stairway appears to have been located under a stairway to the second floor which was observed by appellee as she entered the premises and from which, according to her testimony, a woman who may have been a Mrs. Elizabeth Duncan, an overseer employed by appellant and who lived in a house owned by him to the rear of the premises described herein, was descending and with whom appellee said she had a conversation, excluded from the evidence.

The evidence further tends to show that after said conversation appellee observed the door to her right, opened it in the manner aforesaid, and sought another stairway to the second floor.

The evidence tends to show also that appellee was informed that there were rooms both upstairs and down available for rent and that the large room into which she entered and from which the dark opening to the place where she might find a stair to the basement, was just like what had been described to her.

Aside from the hasp held in place by a nail on the door off the hall, as above described, there was considerable evidence introduced concerning the outside door at the entrance on the west side, that is whether it was locked and boarded up, or unlocked. There was much conflicting evidence and appellant, throughout the trial, stoutly maintained that he was not liable to appellee for the reasons: (1) that no inviation had been extended; (2) that if there were such invitation appellee was contributorily negligent; (3) that appellee was a trespasser; and (4) that she was a mere licensee, not a licensee by invitation. In this appeal appellant asserts that if appellee were a licensee by invitation to inspect the premises for the purpose of rental thereof, the said invitation was a limited one and that she was not permitted to go beyond the doors which either were locked, boarded up, or had a hasp thereon and held in place by a small nail, which could be turned by the use of a file.

The only assignment of error is the overruling of said motion for new trial which contained seventeen (17) different specifications, all of which, except specification No. 4 which is deemed to be waived, appellant seeks to assert in this appeal under various groupings.

By his assignment of error No. 1, relying on specifications 11 and 12 of new trial motion, appellant attacks the refusal to give his Instructions No. 10 and No. 10A, which are as follows:

'Instruction No. 10.

'I instruct you that if you find from the preponderance of the evidence that plaintiff entered the premises of defendant by his invitation, express or implied, and if you further find that after entering therein, walked to a door which she found to be closed and fastened by means of a hasp and nail and barred her opening it, and she could not go through the door, and if you further find that she unfastened the door by forcing the nail from and out of the hasp and she thereupon opened the door and entered into an adjoining room, then in said event or events when she entered by force, if you so find, the invitation, express or implied, ceased and terminated and she thereupon became a licensee and she thereafter took the premises as she found them as to any defects or dangers and defendant would not be liable for any injury resulting to her owing to defects in the condition of the premises, and your verdict should be for the defendant.

'Instruction No. 10A.

'If you find from a preponderance of the evidence that the defendant did in fact extend an invitation, express or implied, to visit the premises at 906-908 English Avenue, then you may consider whether or not said invitation applied to all of said premises or a part thereof. And if you further find from a preponderance of the evidence that the plaintiff entered any part of the premises to which such invitation, either express or implied, did not extend, then in such event she would not be an invitee on that part of the premises so entered without invitation and the defendant would owe the duty not to wilfully, wantonly or maliciously injure the plaintiff.'

Careful consideration of Instruction No. 10 suggests to us that it is mandatory in character and that it would have been error to give it, since the invitation would not necessarily terminate under the circumstances. As to Instruction No. 10A, we think it properly was refused as an invasion of the province of the jury, was not within the issues tendered by the pleadings and the evidence and, like No. 10, does not set forth a completely accurate statement of the law. Beck v. Indianapolis Traction and Terminal Company (1918), 67 Ind.App. 635, 119 N.E. 528.

Furthermore, appellant tendered, and there were given, a number of instructions which may be said to have correctly informed the jury of the law.

'Instruction No. 2.

'Contributory negligence is the failure of the plaintiff to use reasonable care to avoid injury to herself, which failure if any proximately contributes to cause the injuries for which she seeks to recover.

'Instruction No. 3.

'Under the law of Indiana there are no degree of negligence. When the circumstances are such as to impose on a person a duty to use care to avoid injury to another person, the law requires nothing more than that he exercise reasonable care, but it will excuse nothing less.'

'Instruction No. 5.

'One who is on the property of another without the express or implied invitation, permission, or consent of the owner thereof is a trespasser. The owner of property is under no duty to keep his premises safe for a trespasser. The only duty owed a trespasser by an owner of property is to refrain from wilfully, wantonly, or maliciously injuring her, after discovering her presence on the premises; therefore if you find from a preponderance of the evidence that plaintiff herein was a trespasser, and if further find from a preponderance of the evidence that the defendant did not wilfully, wantonly or maliciously injure the plaintiff, then your verdict should be for the Defendant, Edward B. Holtam.'

'Instruction No. 9.

'One who enters the premises of another for her own convenience, curiosity, entertainment, or other purpose with which the owner has no concern, and is there at the permission or...