Howard v. Washington Water Power Co.

• Decision Date: 05 September 1913
• Court: Washington Supreme Court
• Parties: HOWARD et ux. v. WASHINGTON WATER POWER CO.

134 P. 927

75 Wash. 255

HOWARD et ux. v. WASHINGTON WATER POWER CO.

Supreme Court of Washington

September 5, 1913

Department 2. Appeal from Superior Court, Spokane County.

Action by J. E. Howard and wife against the Washington Water Power Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Post Avery & Higgins, of Spokane, for appellant.

Morriel Chester & Skuse, of Spokane, for respondents.

ELLIS J.

This is an action for personal injuries claimed to have been suffered by the plaintiff Lottie M. Howard through coming in contact with an exposed electric light switch in a house which the plaintiffs had rented from the defendant.

The complaint alleges that the defendant was the owner of an electric light plant in the city of Spokane and was engaged in furnishing, to the residents of the city, electricity for lighting and other purposes; that the defendant owned the residence in which the plaintiffs were living; that the house was wired for the purpose and was lighted by electricity furnished by the defendant on usual terms to its customers and paid for by plaintiffs; that in the front hall near a window and four or five feet from the floor in a small opening in the wall had been placed an electric attachment the wires or appliances of which had been exposed, uninsulated, and unprotected but were not such as to attract attention; that on the 8th day of March, 1912, while the plaintiff Lottie M.

Howard was engaged in washing the wall and window, her hand came in contact with the exposed electric wire or apparatus, the existence and location of which were unknown to her, and therefrom she received a severe electric shock which threw her on the floor and across a bucket where she lay unconscious until found by her husband; that the time she was pregnant; and that she suffered a miscarriage that night and sustained other injuries by reason of the stock and fall. The complaint further alleges: 'That defendant was guilty of negligence in causing or permitting said electrical wires to be charged with such a dangerous current of electricity and in allowing the same to be exposed and unprotected, as hereinbefore mentioned, and in failing to give plaintiffs any warning of such condition; it being well known to defendant that plaintiffs knew nothing about electricity, electrical appliances, or the danger arising from the conditions hereinbefore mentioned.' A general demurrer to the complaint was overruled on submission without argument. The answer put in issue the allegations of negligence, interposed the defense of contributory negligence, and alleged that under the rental agreement the tenants undertook to fix, adjust, and install electric wires for lighting. The affirmative allegations of the answer were traversed by the reply.

The evidence shows that in the latter part of December, 1911, the plaintiff husband opened negotiations with a rental agency for renting the house in question; that afterwards the plaintiff wife with a friend visited and examined the house; and that thereafter an arrangement was made between the plaintiffs and the defendant's agent whereby the plaintiffs rented the place and because of its condition were to receive the first month's rent free, the first payment being them made for the second month's rent. There is some conflict in the evidence as to just what the agreement was; the plaintiffs claiming that they were merely to repair certain windows and clean the house, the defendant claiming that in consideration of the first month's rent the plaintiffs were to make all necessary repairs to the house. There was, however, neither definite claim nor clear proof that the defendant agreed to make any repairs. After taking possession of the house, the plaintiffs cleaned part of it and made some repairs. The front part of the house had not been cleaned. They intended to let certain rooms, and on the day in question Mrs. Howard was cleaning the front hall. In the hall on the left side of the front door and near to a narrow window behind the door was an ordinary switch for the purpose of turning off and on an electric light on the porch. The cap or covering from the top of this switch and also the button had been removed. Mrs. Howard testified that about 5 o'clock in the afternoon of March 8, 1912, she was washing the casing about the door and window mentioned, and that while so doing she placed her hand on this exposed switch, and, the floor being wet, she received an electric shock which caused her to fall across a pail filled with water which she was using. She also testified that she was pregnant and that the accident caused a miscarriage that night. There was no witness to the accident, but her husband testified that he found her about 10 or 15 minutes after 5 o'clock, lying unconscious upon her stomach across the pail. Two doctors testified that from symptoms a short time after the accident, and from certain examinations, they were both satisfied that a miscarriage had actually occurred. Both testified that there was nothing unusual in the symptoms; that the miscarriage was complete and the symptoms satisfactory from a physician's point of view. A former tenant, who had occupied the premises shortly before it was rented to the plaintiffs, testified that the electric apparatus in the house was all badly out of repair and that he had repeatedly called the attention of defendant's agent to this condition. He also testified rather vaguely that the agent had been notified of the exposed condition of the switch in question which was located behind the front door. Notice of any kind was denied by the defendant's agent. One expert electrician testified that under the conditions, wet hand, wet floor, and live exposed wires, when the hand was placed so as to touch both wires the electrical current would pass through the entire body. Another expert testified that under these conditions the current would only pass through the hand. The latter also testified that three or four days after the accident he tested the current in the exposed wires and found it only 97 volts, and that such a current would cause but a slight shock and no injury. There was no evidence, however, that the current was of the same strength at the time of the test as it was at the time of the accident. The trial resulted in a verdict against the defendant for $3,000. The appellant moved for judgment notwithstanding the verdict or, in the event that was denied, for a new trial. The court denied the first motion and overruled the motion for a new trial on condition that the plaintiffs accept a judgment for $2,000. The condition was accepted and judgment was entered for that amount. The defendants have appealed.

It is contended that no liability on the appellant's part for the accident was shown, either by facts pleaded or by evidence adduced, because the landlord did not agree to repair. It is a general rule that, without an express contract to the contrary, a tenant takes the demised premises as he finds them, and that there is no implied warranted on the landlord's part that they are safe or even fit for the purpose for which they are rented. The rule caveat emptor applies. In the absence of fraud or active deceit, where the action is upon the contract or for its rescission, or for damages in lieu thereof, this is a rule of almost universal application. There can be no question that, if this were an action upon the contract, there could be no recovery since the landlord did not agree to make any repairs. This, however, is not an action upon the contract. It is not an action for damages for failure to repair. It is an action for a tort, for a negligent breach of duty which in any case, without regard to the terms of the contract, the landlord owes to the tenant. The duty is a legal incident to the creation of the relation of landlord and tenant independent of the terms, either expressed or implied, of the contract creating it. Where there are obscure defects dangerous to the life, health, or property of the tenant existing and known to the landlord when the lease is made, but unknown to and unappreciated by the tenant, and which a reasonable, careful examination on his part would not discover, it is the duty of a landlord to disclose them that the tenant may either decline the premises or guard against the defects. The failure to disclose such defects or dangers is culpable negligence. It constitutes a well-recognized exception to the general rule of nonliability of the landlord in the absence of a warranty against defects or an agreement to make repairs. The rule caveat emptor rests in contract as an implied assumption on the tenant's part of the risks of all obvious defects or conditions affecting the safety or fitness of the premises. It can never be invoked to condone a tort. The general rule and the exception have been well and comprehensively stated as follows: 'On the owner's entire surrender of control over premises to a lessee, he is, in the absence of any warranty of their condition or fraudulent concealment of known defects or agreement to repair on his part, free from liability to the lessee and to those whom the latter invited upon the premises for defects which could have been discovered by the lessee, on reasonable inspection, at the time of hiring. In other words, if the lessee has the same opportunities as the owner to discover a defect, at the time of leasing, the rule of caveat emptor applies, and he takes the premises as he finds them. There is therefore no implied warranty on the part of a lessor that the premises are safe or reasonably fit for occupation. Where, however, there is some latent defect (e. g., an original structural weakness, or decay, the presence of an infectious disease, or other injurious...