Kowinko v. Salecky
| Decision Date | 08 August 1969 |
| Docket Number | No. CV,CV |
| Citation | 260 A.2d 892,5 Conn.Cir.Ct. 657 |
| Court | Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division |
| Parties | George KOWINKO v. Joseph SALECKY et al. 14-635-4602. |
John M. Fitzgerald, Hartford, for appellants (defendants).
Waldemar J. Lach, Hartford, with whom, on the brief, was Lloyd Frauenglass, Hartford, for appellee (plaintiff).
In his amended complaint the plaintiff alleged that he was tenant of the defendants and the defendants had permitted a defective storm sash and a defective storm window to remain on the demised premises which they knew of, or in the exercise of a reasonable inspection would have discovered, and that they failed to take precautionary measures to save the plaintiff from harm or to notify the plaintiff of the danger and had further, at the time of the letting, represented that the equipment furnished the plaintiff was in proper working condition when in fact it was not. Aside from the tenancy the defendants denied the allegations and by way of a special defense alleged that the plaintiff's negligence proximately caused the alleged injuries. In their appeal the defendants assign errors in the denial of their motions for a directed verdict, for judgment notwithstanding the verdict, and to set aside the verdict. Further error is claimed in the denial of their motion to correct the finding and also in the court's charge.
We first consider the assignments of error directed to the finding. It has been pointed out on many occasions that a finding in a jury trial is not a statement of facts a trial court has found proven but a narration of the facts claimed to have been proven by the parties, made for the purpose of presenting any claimed errors in the charge. 'It serves no useful purpose to seek corrections in the finding as regards nonessential details or facts which do not serve to make clearer the situation as related to the claimed errors.' Voronelis v. White Line Bus Corporation, 123 Conn. 25, 27, 192 A. 265, 266; Practice Book §§ 957, 999. The 'claimed errors' in a finding under the procedure in the Circuit Court relate solely to errors in the charge. In the case before us the finding, as made, sufficiently presents the determinative issue as it relates to the charge and we have no need to consider the corrections sought.
We first review the question of the denial of the motion for a directed verdict and if such a motion would have been proper and, if this requires an affirmative answer, we than come to the question whether the court erred in refusing to render judgment for the defendants notwithstanding the verdict. Hemmings v. Weinstein, 151 Conn. 502, 503, 199 A.2d 687. Directed verdicts are not favored and should be granted only when the jury could not reasonably and legally reach any other conclusion. Console v. Nickou, 156 Conn. 268, 270, 240 A.2d 895; Johnson v. Consolidated Industries, Inc., 153 Conn. 522, 524, 218 A.2d 380. In reviewing the evidence, we give it the most favorable construction in support of the verdict of which it is reasonably capable. Console v. Nickou, supra; Hemmings v. Weinstein, supra, 504, 199 A.2d 687.
The following facts are either undisputed or could reasonably have been found by the jury to have been established. The defendants owned a three-family house in the city of Hartford and they resided on the first floor. The plaintiff visited the property and entered into a parol lease from month to month on the assurance of the defendants that they would attend to necessary repairs. The defendants retained a key to the plaintiff's apartment for the purpose of making sure the apartment was kept in good condition. The plaintiff moved in around April 6, 1962, and occupied the premises. On April 10, while washing a window, he was injured when a sash cord on an interior window broke, resulting in the falling of the window and also an outside aluminum storm window, each of which caused injury to the plaintiff's hands. The plaintiff had been cleaning the winow for some fifteen minutes and had observed nothing wrong with either window, nor did her observe any defective condition in the sash cord. After the accident the cord was found to be old, brown and frayed at the point of serverance. Shortly after the accident, Mrs. Salecky appeared and examined the window and then said, 'Okay, I fix, pay doctor and I fix everything.' The defendants later repaired the window.
' At common law as a general rule, the landlord is under no implied obligation or liability to the tenant for personal injuries due to the defective condition of the demised premises or the lack of repair of defects therein where the landlord has not made any warranty or contract relative to the condition of the demised premises or the repair of defects.' Panaroni v. Johnson, 158 Conn. 92, 97, 256 A.2d 246, 251. In Masterson v. Atherton, 149 Conn. 302, 306, 179 A.2d 592, the general rule is carefully analyzed, and it is noted that there are certain exceptions or at least apparent exceptions in that the general rule does not apply to defects existing at the beginning of the tenancy if they '(a) were not discoverable on reasonable inspection by the tenant, and (b) were defects with a knowledge of which the landlord was chargeable.' Id., 307, 179 A.2d 595, citing Shegda v. Hartford-Connecticut Trust Co., 131 Conn. 186, 191, 38 A.2d 668. The burden is on the tenant to allege and prove the facts necessary to establish that he is within one or more of the exceptions in order to take his case out of the general rule of 'caveat emptor.' Masterson v. Atherton, supra, 307, 179 A.2d 592.
In the instant case, it appears that the plaintiff sought recovery under the general rule as well as on the theory that the defendants had retained a limited control of the premises for the purpose of making repairs by reason of an agreement entered into by the parties at the time of the leasing. While the latter theory was not specifically alleged in the complaint, it appears that it became the dominant issue. The complaint, as drawn, was very likely open to a motion for an amendment when the variance became apparent. Practice Book § 134. Lacking this, however, the case was tried upon its merits without objection by the defendants. Jordan v. Apter, 93 Conn. 302, 304, 105 A. 620.
Under the general rule as set forth in Masterson v. Atherton, supra, 307, 179 A.2d 592, if the plaintiff was to succeed it was incumbent upon him to prove initially that the defect was in existence at the beginning of the tenancy. The jury were entitled to draw a permissive inference that the defect was not of such a transitory nature that a lapse of time from the beginning of the tenancy to the time of injury (four days) resulted in any material change in the cord's condition. Johnson v. Charles William Palomba Co., 114 Conn. 108, 114, 157 A. 902, 80 A.L.R. 441. The plaintiff also had the burden of proving, under Masterson, that the defect was not discoverable on reasonable inspection by the tenant and was a defect with a knowledge of which the landlord was chargeable. Seaman v. Henriques, 139 Conn. 561, 567, 95 A.2d 701; DesMarchais v. Daly, 135 Conn. 623, 626, 67 A.2d 549; Shegda v. Hartford-Connecticut Trust Co., supra. Actual knowledge of a defect, by the tenant, is fatal to his case. Masterson v. Atherton,supra.
There was no evidence from which the jury could find that the defendants had actual knowledge of the defect. The evidence relating to the defective condition arose solely from the observation made by the plaintiff and his wife after the accident. The plaintiff testified that the cord, after having broken, appeared to be old and brown in color and at the point of severance looked like 'old rags,' although he had seen nothing wrong with the cord before it had broken. The wife of the plaintiff testified that she looked at the window after the accident and 'saw a small piece of torn cord in the upper part of the frame.' The next day she examined it more closely and it 'was brown, sort of frayed with sort of rust coloring in it.' Since under the general rule a landlord is not obligated to inspect the premises per se and since there was no evidence from which the jury could reasonably conclude that the defect was one 'with a knowledge of which the landlord was chargeable,' as required, the rule of 'caveat emptor' applied, and thus, the cause of action could not be supported under this theory of the plaintiff's case. Shegda v. Hartford-Connecticut Trust Co., supra, 192, 38 A.2d 668.
We now consider the claim for recover on the theory that the defendants agreed to keep the premises in repair and for that purpose retained a limited control of the premises. It is significant that the plaintiff's offer of proof relating to retention of control was not challenged. The burden of proving retention of control, which would remove the case from the general rule, was upon the plaintiff. Masterson v. Atherton, 149 Conn. 302, 309, 179 A.2d 592; Martel v. Malone, 138 Conn. 385, 388, 85 A.2d 246. Repairs made by a landlord voluntarily, without special circumstances, will not in the themselves support a finding of an agreement to repair. Palimas v. Aress Realty Co., 130 Conn. 687, 692, 37 A.2d 243. And it 'is true that ordinarily there can be no recovery of damages for negligence based upon a promise to make repairs within a rented tenement unless the landlord has notice of the defect.' Chipman v. National Savings Bank, 128 Conn. 493, 498, 23 A.2d 922, 924; Rumberg v. Cutler, 86 Conn. 8, 10, 84 A. 107. In the instant case, however, there was evidence tending to show, and the jury could reasonably find, that the defendants had entered into a contemporaneous oral agreement, as part of the consideration of the rental, in which they agreed to keep the property in repair and for the purpose had retained a key to the premises. Corroborative of such an agreement was the further evidence that the...
To continue reading
Request your trial
-
Prodigy Services Co. v. South Broad Associates
...Id. at 78-79. Thus, the landlord was liable although it had no actual notice of the defect. Similarly, in Kowinko v. Salecky, 5 Conn. Cir. Ct. 657, 260 A.2d 892, 897-98 (1969), based on the landlord's agreement to repair the premises and retention of a key to the premises, the court found t......