Hunter v. Freeman

• Decision Date: 25 June 1951
• Citation: 233 P.2d 65,105 Cal.App.2d 129
• Parties: HUNTER v. FREEMAN et al Civ. 18011.
• Court: California Court of Appeals Court of Appeals

Page 65

233 P.2d 65

105 Cal.App.2d 129

HUNTER v. FREEMAN et al

Civ. 18011.

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

June 25, 1951.

Jacob W. Silverman, Los Angeles, for appellant.

William Dellamore and E. W. Miller, Los Angeles, for respondents.

DRAPEAU, Justice.

Plaintiff seeks to recover damages for alleged injuries sustained by her when a gas heater exploded.

On March 15, 1949, she rented a furnished apartment from defendants, the owners and operators of an apartment building. The explosion occurred on March 28, 1949, as plaintiff was lighting the heater for the first time during her occupancy of the premises. The flames which shot from the explosion severely burned her entire body.

General and special demurrers were sustained to the complaint and to the first amended complaint with leave to amend. Plaintiff having failed to amend the latter complaint within the time allowed, the court dismissed the action upon motion therefor made by defendants. This appeal is from the judgment of dismissal.

The first amended complaint contains three causes of action:

The first of these is based upon the breach of an implied warranty. It alleges that on and prior to March 28, 1949, respondents were the owners, operators, and in possession and control of the demised premises together with the furnishings, including 'a detachable gas heater.' That from March, 15, 1949, appellant occupied the said furnished apartment as a tenant of respondents.

It is further alleged 'That by reason of the foregoing * * * defendants and each of them, did impliedly warrant unto plaintiff that said furnishings, including said gas heater, were fit for use.

'That unknown to plaintiff, defendants did breach said warranty in that, at said time when plaintiff went into occupancy of said furnished apartment, and subsequent thereto, said gas heater was not fit for use by plaintiff but actually was in a defective, unsafe and dangerous condition.'

Further, that the first time appellant had occasion to use the heater, it exploded burning her severely. 'That said accident and casualty and the resultant injuries to plaintiff were directly and proximately caused by said breaches on the part of defendants and each of them and said resultant defective and dangerous condition of said heater'; all to her damage.

The second cause of action alleges negligence of respondents in that:

'1. They did maintain and control said heater in a careless, negligent and imprudent manner.

'2. They carelessly, negligently and imprudently failed and neglected to put said heater in a condition fit for the living purposes of plaintiff, and

'3. They carelessly, negligently and imprudently failed to repair all deteriorations and defects thereof.'

The third cause of action alleges that at the time of the letting, respondents had 'actual knowledge' of the defective, unsafe and dangerous condition of the heater; that they failed to disclose such condition of to appellant, and that 'said defects in said gas heater were unknown and unapparent' to appellant.

'That said accident and the injuries resulting therefrom were directly and proximately caused by said defects in said gas heater, the actual knowledge thereof by the defendants and each of them and their failure to disclose said defects to plaintiff at the time of the letting or at any time prior or subsequent thereto.'

Appellants here rely upon the case of Fisher v. Pennington, 116 Cal.App. 248, 250, 2 P.2d 518, 520, wherein it is stated: 'Furniture supplied to the renter of a furnished apartment imposes on the owner a liability 'for all damage caused to him by the defects or devices of the thing deposited.' Civ.Code, § 1833. In the renting of a furnished apartment there is an implied warranty that the furniture is fit for use or occupation.' In the cited case, plaintiff was injured during the first month of the tenancy, when the door to which a folding bed was attached fell over the top of the bed.

In the late case of Wilson v. Ray, 100 Cal.App.2d 299, 303, 223 P.2d 313, 315, which involved an explosion of a gas range while plaintiff was lighting the oven, it was held: 'It is the general rule that a landlord is not liable to a tenant or his invitees for defective condition or faulty construction in property leased, in the absence of fraud, concealment or a covenant in the lease. (Forrester v. Hoover Hotel & Inv. Co., 87 Cal.App.2d 226, 232, 196 P.2d 825; Shotwell v. Bloom, 60 Cal.App.2d 303, 309, 140 P.2d 728.) * * * In the present case there is no pleading or proof that defendants covenanted in their lease that the stove in question was not defective, that they perpetrated any fraud upon the lessee or concealed any material fact from the lessee.' It was also stated that since the complaint in the cited case did not contain an allegation which would support the theory of an express or implied warranty, the case of Fisher v. Pennington, supra, did not apply.

In Forrester v. Hoover Hotel & Inv. Co., 87 Cal.App.2d 226, 228, 231, 196 P.2d 825, 826, an action based on negligence of the landlord when a folding bed fell and injured the tenant, it was said:

'The cause was submitted to the jury under instructions to the effect that the landlord was not liable for injuries resulting from defects which could be discovered by reasonable inspection, nor for latent defects unknown to him. * * * No instructions were given or requested upon the theory (hereinafter...