Johnson v. O'Brien

• Decision Date: 29 July 1960
• Docket Number: Nos. 37800,37801,s. 37800
• Citation: 88 A.L.R.2d 577,258 Minn. 502,105 N.W.2d 244
• Parties: , 88 A.L.R.2d 577 Patricia A. JOHNSON and Wilford Johnson, Respondents, v. (Cornelius O'Brien) Sarah O'BRIEN, executrix of Estate of Cornelius O'Brien, deceased, substituted as appellant, and Sadie O'Brien, Appellants.
• Court: Minnesota Supreme Court

Page 244

105 N.W.2d 244

258 Minn. 502, 88 A.L.R.2d 577

Patricia A. JOHNSON and Wilford Johnson, Respondents, v. (Cornelius O'Brien) Sarah O'BRIEN, executrix of Estate of Cornelius O'Brien, deceased, substituted as appellant, and Sadie O'Brien Appellants.

Nos. 37800, 37801.

Supreme Court of Minnesota.

July 29, 1960.

Rehearing Denied Oct. 5, 1960.

Syllabus by the Court

1. Where a landlord has information which would lead a reasonably prudent owner exercising due care to suspect that danger exists on the leased premises at the time the tenant takes possession, and that the tenant exercising due care would not discover it for himself, then he must at least disclose such information to the tenant.

2. It is error for the court or counsel to, expressly or by necessary implication, inform the jury of the effect of an answer to a question of the special verdict upon the ultimate right of either party to recover, or upon the ultimate liability of either party. Held, under the circumstances here, however, we do not regard the error as prejudicial where the court instructed the jury to disregard the comments of counsel immediately after they were made, and also in its instructions stated not to speculate as to the legal result of their answers. Also the evidence is sufficient to sustain the findings on the special questions.

3. Evidence of one's property transfers after the occurrence of some event which may render him liable in damages is admissible to show a consciousness of liability and a purpose to evade satisfaction of it.

Ryan, Ryan & Ebert, Brainerd, for appellants.

Carl E. Erickson, Brainerd, for respondents.

FRANK T. GALLGHER, Justice. DP Two appeals from an order denying defendants' motion for judgment notwithstanding the verdict or for a new trial in two personal injury actions which were tried together.

The cases were submitted to the jury for a special verdict under Rule 49.01, Rules of Civil Procedure, and arose out of the following fact situation.

Defendants owned a two-story building in Deerwood, Minnesota. The first floor was rented and used as a grocery store, the second floor was divided into two apartments, front and back. Both apartments were served by an inside stairway and the back apartment was served by an outside stairway of wooden construction which was built sometime prior to 1923.

On July 10, 1955, an agent of the defendants rented the back apartment to the Mrs. Elletson, age 70, on an oral month-to-month tenancy. There was no covenant to repair by the defendants. The outside stairway was leased as part of the back apartment and was not used in common by the other tenant.

On October 3, 1955, Mrs. Elletson's son and his wife, the plaintiffs, came to visit her. While they were using the back stairway, one of the treads, second from the top, gave way and the son's wife fell to the ground and sustained a fracture of the anterior border of the sixth cervical vertebra.

Defendants do not question the amount of the damages awarded. However, with respect to their liability and the conduct of the trial, defendants raise four basic issues which are necessary to a determination of this appeal.

Defendants contend first that the rule of law applied by the court as to the liability of a landlord is incorrect In that connection the court instructed the jury as follows:

'In the absence of agreement, he is under no obligation to repair things damaged or deteriorating after the start of the lease. He has no responsibility to persons on the land for conditions developing after the start of the lease. The owner is, however, under obligation to disclose to the lessee, Mrs. Elletson in this case, concealed, dangerous conditions existing when the possession is transferred, when he has information which would lead a reasonable prudent owner, exercising due care, to suspect that the danger exists and that the tenant, exercising due care, would not discover it for himself and which conditions are not open to the observation of the tenant then he must at least disclose such information to the tenant or be found lacking in due care.'

In the memorandum accompanying its order denying defendants' motion for a new trial, the court relied on Breimhorst v. Beckman, 227 Minn. 409, 418, 419, 35 N.W.2d 719, 726, where we stated that the liability of a landlord 'is not restricted to those instances where the lessor has actual knowledge of the dangerous condition of the premises, but includes those cases where he has information which would lead an ordinarily reasonable man to suspect that danger exists,' and that 'The liability for concealing or failing to disclose a dangerous condition unknown to the lessee is based on the theory of negligence.' This rule was applied in the Breimhorst case in determining whether the trial court erred in directing a verdict for the landlord and in denying plaintiff's motion for a new trial. There was no evidence in that case from which a jury could justifiably have found that the lessor ought reasonably to have suspected that a dangerous condition existed.

Defendants contend that the authorities cited in the Breimhorst case do not support the rule therein followed. They contend that in Murphy v. Barlow Realty Co., 214 Minn. 64, 7 N.W.2d 684, actual knowledge of the defect was present and that Anderson v. Winkle, 213 Minn. 77, 5 N.W.2d 355, involved a situation in which an injury occurred on a stairway used in common with other tenants.

We find in 1 Tiffany, Landlord and Tenant, § 96b, also cited by the court in the Breimhorst case, that a lessor is liable to persons rightfully on the premises for injuries caused by defects or dangerous conditions existing at the time of the leasing, which, while not apparent to the lessee, were known to the lessor and of which he failed to inform the lessee, 'And his liability extends not only to dangerous conditions of which he actually knows, but also to those the existence of which he has reasonable ground to suspect.'

In 32 Am.Jur., Landlord and Tenant, §§ 672 and 673, a distinction is made between a majority and a minority view, the majority holding that the landlord must have actual knowledge. The minority view is that the landlord who rents premises which are in an unsafe and dangerous condition on account of latent defects is under a duty to exercise reasonable care to discover such defects and apprise the tenant thereof and that a failure to exercise such care renders him liable to the tenant ¹ for injury he may receive therefrom without negligence on his part. For this same distinction, see also 52 C.J.S. Landlord and Tenant § 417.

In Prosser, Torts (2 ed.) § 80, we find the following comment 'Some courts apparently require that the lessor have actual knowledge of the existence of the condition before he is under any duty in regard to it. The greater number have held, however, that it is sufficient that he has information which would lead a reasonable man to suspect that the danger exists, and that he must at least disclose such information to the tenant. Tennessee has gone even further, and has imposed upon the lessor an affirmative duty to use reasonable care to inspect the premises before transfer; but the decision has not been followed in other jurisdictions, where it is generally agreed that there is no obligation to inspect or investigate in the absence of some reason to believe that there is a danger. There is of course no duty to disclose conditions which are known to the tenant, or which are so open and obvious that he may be expected to discover them when he takes possession.' (Italics supplied.)

It would serve no useful purpose to analyze in detail the authorities cited by the defendants in support of their contention. We believe that the rule established in the Breimhorst case, as embodied in the instructions of the present case, is correct and well founded in reason and justice.

1. Accordingly, where a landlord has information which would lead a reasonably prudent owner exercising due care to suspect that danger exists on the leased premises at the time the tenant takes possession, and that the tenant exercising due care would not discover it for himself, then he must at least disclose such information to the tenant. ² Under the circumstances here a question of fact was properly presented for the jury.

We agree with the trial court that 'To require one to use that care which an ordinarily prudent person would exercise under the same or similar circumstances can hardly be onerous, unreasonable or oppressive.'

The following Minnesota authorities may be referred to in support of defendants' position: Harpel v. Fall, 63 Minn. 520, 65 N.W. 913; Tvedt v. Wheeler, 70 Minn. 161, 72 N.W. 1062; Kayser v. Lindell, 73 Minn. 123, 75 N.W. 1038; Farley v. Byers, 106 Minn. 260, 118 N.W. 1023; Ames v. Brandvold, 119 Minn. 521, 138 N.W. 786; Daley v. Towne, 127 Minn. 231, 149 N.W. 368; Keegan v. G. Heileman Brg. Co., 129 Minn. 496, 152 N.W. 877, L.R.A.1916F, 1149; Cederberg v. Nelson, 179 Minn. 104, 228 N.W. 352; Normandin v. Freidson, 181 Minn. 471, 233 N.W. 14; Murphy v. Barlow Realty Co., 214 Minn. 64, 7 N.W.2d 684; Anderson v. Winkle, 213 Minn. 77, 5 N.W.2d 355; Mani v. E. Hugo Erickson, Inc., 209 Minn. 65, 295 N.W. 506; Nickelsen v. Minneapolis, N. & S. Ry., 168 Minn. 118, 209 N.W. 646; Mix v. Downing, 176 Minn. 156, 222 N.W. 913; Johnson v. Theo. Hamm Brg. Co., 213 Minn. 12, 4 N.W.2d 778; Ryberg v. Ebnet, 218 Minn. 115, 15 N.W.2d 456; Honan v. Kinney, 205 Minn. 485, 286 N.W. 404. To the extent that the rule in these cases might be interpreted as meaning that only actual knowledge of defects on leased premises constitutes a prerequisite to the liability of a landlord, they are expressly overruled.

The second issue is whether counsel may comment to the jury as to the legal effect of its answer to question in rendering a special verdict pursuant to Rule 49.01, Rules of Civil Procedure.

Four questions pertinent to...