Larson v. Eldridge

• Decision Date: 09 July 1929
• Docket Number: 21847.
• Citation: 279 P. 120,153 Wash. 23
• Parties: LARSON v. ELDRIDGE et ux.
• Court: Washington Supreme Court

279 P. 120

153 Wash. 23

LARSON v. ELDRIDGE et ux.

No. 21847.

Supreme Court of Washington

July 9, 1929

Department 2.

Appeal from Superior Court, King County; J. T. Ronald, Judge.

Action by Moris Larson against Arthur S. Eldridge and wife. Judgment for plaintiff, and defendants appeal. Reversed, and action dismissed.

Shank Bett & Fairbrook, of Seattle, for appellants.

Vanderveer & Levinson, of Seattle, for respondent.

PARKER J.

The plaintiff, Larson, who occupied a room in an apartment as subtenant of a Mrs. Berg, who was tenant as lessee of the apartment from the defendants, Eldridge and wife, owners of the apartment house, seeks recovery of damages from them for personal injuries alleged as suffered by him as the result of their negligence in failing to maintain in a safe condition the railing on the balcony adjoining the room so occupied by him. Trial in the superior court for King county, sitting with a jury, resulted in verdict and judgment awarding to plaintiff recovery, from which the defendants have appealed to this court.

The principal contention here made in behalf of appellants Eldridge and wife, is that, by reason of the tenancy of Mrs Berg, under which she held the apartment from them, and thereby her entire control over the apartment and the balcony, they are not liable to her or respondent, Larson her subtenant, and that the trial court should have so decided as a matter of law, in response to appropriate timely motions made in that behalf by counsel for appellants.

The controlling facts conceded or conclusively proven, as we view this record, touching this contention, may be summarized as follows:

The apartment house in question, situated in Seattle and owned by appellants, is a two-story wooden building of considerable size, containing 10 residence flats or apartments. Mrs. Berg rented from appellants one of the apartments, containing several rooms, just how many is not shown. Her renting contract was oral, and created only a month to month tenancy. Nothing whatever was said by either party to the renting contract as to maintenance or repairs of any portion of the apartment or the building. While the apartment so rented by Mrs. Berg is on the first or street floor of the building, just back of its front room and opposite its kitchen there is in the side of the building a recess balcony, the floor of which is on the same level as the floor of the apartment and about eight feet above the ground at the side of the building. This is caused by the ground sloping downward from the street level. At the time in question there was a railing, of apparently substantial and safe character, clear along the outer edge of the balcony; that is, along the line of the extreme outer side of the building.

Access to the balcony was only through windows opening from the front room at the end of the balcony, the kitchen alongside the balcony, and one of the rear rooms at the other end of the balcony. There was no access to the balcony from any other flat or apartment of the building. No one had any use of it whatever, or rightful access to it, other than Mrs. Berg and her subtenant or tenants, occupants of her apartment. There was no access to the balcony from the outside of the building. The sills of these windows were not over two feet above the floor, so there was fairly convenient access through them to the balcony, and it was manifestly intended that they should be freely so used by the occupants of the apartment. Potted plants and other things were kept on the balcony by the occupants of Mrs. Berg's apartment, as was done on similar balconies of the building by occupants of apartments opening thereon.

Some time after the renting of the apartment to Mrs. Berg, she rented the front room thereof to respondent, Larson. He kept some potted plants on the balcony, and frequently went out through the window to tend to them. At the time he was injured, he went out on the balcony for that purpose. Two boys were then playing ball by the building on that side. One of them playfully threw the ball up to respondent, intending him to catch it. He then leaned, slightly as he claims, against the railing of the balcony, reaching for the ball, when the railing gave way, causing him to fall to the ground about eight feet below, and so received the injuries for which he here seeks recovery. There is no evidence indicating in any degree that appellants had any knowledge or reason to suspect, at the time they rented the apartment to Mrs. Berg, that the railing of the balcony was other than safe and in a good state of repair.

Assuming for the present the facts above noticed to be all the controlling facts of the case, we first inquire as to whether or not appellants owed Mrs. Berg, their tenant, any duty of repair or maintenance of the balcony railing. The law is well stated by Judge Ellis, speaking for this court in Mesher v. Osborne, 75 Wash. 439, 134 P. 1092, 48 L. R. A. (N. S.) 917, as follows: 'It is a general principle that, in the absence of express contract to the contrary, a tenant takes the demised premises as he finds them and there is no implied warranty by the landlord that they are safe or fit for the purpose for which they are hired. The maxim caveat emptor applies. 3 Shearman & Redfield, Negligence (6th Ed.).' Our decisions in Ward v. Hinkleman, 37 Wash. 375, 79 P. 956, Baker v. Moeller, 52 Wash. 605, 101 P. 231, and Johnston v. Nichols, 83 Wash. 394, 145 P. 417, adhere to this view of the law. It is the law in most, if not all, the states of the Union (16 R. C. L. 1031), as it is also the law in England (Woodfall's Law of Landlord & Tenant [20th Ed.] 212).

At the commencement of Mrs. Berg's tenancy of the apartment, the balcony railing was apparently safe and in a good state of repair, and appellants did not then have any knowledge or reason to suspect that it was otherwise. The balcony was also at all times exclusively accessible from the apartment Mrs. Berg rented from the appellants; it being to all intents and purposes a part of that apartment and exclusively for use in connection therewith. This is not a question of a landlord's duty to maintain in a safe state of repair hallways, stairs, porches, roofs, or other portions of his building, retained under his control for the common use or benefit of his several tenants in the building, as has often been drawn in question in such cases as McGinnis v. Keylon, 135 Wash. 588, 238 P. 631, Davies v. Kelley, 112 Ohio St. 122, 146 N.E. 888, Charlow v. Blankenship, 80 W.Va. 200, 92 S.E. 318, L. R. A. 1917D, 1149, Merritt v. Haas, 106 Minn. 275, 118 N.W. 1023, 119 N.W. 247, 21 L. R. A. (N. S.) 153, and Hinthorn v. Benfer, 90 Kan. 731, 136 P. 247, L. R. A. 1915B, 98. It seems clear to us, under these facts, that appellants did not owe to Mrs. Berg any duty whatever of repair or maintenance of the balcony railing, since she, as tenant, had possession, and was in as complete control of the apartment, and the balcony as a part of it, as if they had constituted a separate dwelling house.

We next inquire what, if any, was the duty of appellants to respondent with reference to maintenance and repair of the balcony railing? Our decisions, in harmony with the law, as announced in other jurisdictions, are to the effect that the original lessor does not owe any higher duty to his tenant's subtenants, customers, or invitees than he owes to his own tenant. Baker v. Moeller, 52 Wash. 605 101 P. 231; Hogan v. Metropolitan Building Co., 120 Wash. 82, 206 P. 959; Uhl...