Lavery v. Brigance

• Citation: 242 P. 239,122 Okla. 31,1925 OK 702
• Decision Date: 15 September 1925
• Docket Number: 14847.
• Parties: LAVERY v. BRIGANCE et al.
• Court: Supreme Court of Oklahoma

242 P. 239

122 Okla. 31, 1925 OK 702

LAVERY v. BRIGANCE et al.

No. 14847.

Supreme Court of Oklahoma

September 15, 1925

Syllabus by the Court.

A demurrer to the evidence admits all of the facts which the evidence reasonably tends to establish, and all the inferences and conclusions which may reasonably be drawn therefrom; but, where the evidence introduced is insufficient to sustain a verdict or judgment in favor of the party introducing the evidence, it is not error for the court to sustain a demurrer to such evidence.

In the absence of a statute or an agreement, there is no implied warranty that leased premises are suitable for the purposes for which they are demised.

In the absence of warranty, deceit, or fraud, the rule of caveat emptor applies to leases of real estate, the control of which passes to the tenant, and it is the duty of the tenant to make examination of the demised premises to determine their safety and adaptability to the purposes for which they are hired; hence, for personal injuries received by him from latent defects therein, of which the landlord had no knowledge at the time of the lease, the latter cannot be held responsible.

For failure of the lessor of a building, intended for the occupancy of persons, to comply with section 7370, Comp Stats. 1921, providing that it be placed in fit condition and for subsequent repair, the lessee is confined to the remedy provided in section 7371, Comp. Stats., and said noncompliance gives no right of action for personal injuries resulting therefrom.

Appeal from District Court, Okmulgee County; Guy F. Nelson, Judge.

Action by Helen B. Lavery against J. C. Brigance and H Eichenberger, copartners doing business under the firm name and style of Brigance & Co., and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Cochran & Ellison and Charles A. Dickson, all of Okmulgee, for plaintiff in error.

McCrory & Monk and A. L. Emery, all of Okmulgee, for defendants in error.

PHELPS J.

The plaintiff, Helen B. Lavery, brought this action against Eichenberger and Brigance, the Okmulgee Gas Company, and W T. Foley and Julia Foley, husband and wife, for damages for personal injuries. A trial was had, and, at the conclusion of plaintiff's testimony, the court sustained the demurrers of the Okmulgee Gas Company and W. T. and Julia Foley. From the action of the trial court in sustaining the demurrer of the Foleys, this appeal is taken. For convenience, the parties will be referred to as in the trial court.

The facts as disclosed by the record are substantially as follows: In August, 1919, the plaintiff rented from the Foleys, under an oral lease, a three-room house in Okmulgee, Okl. She purchased a gas cook stove from Eichenberger and Brigance, which the said dealers were to set up, ready for use, in said house. She was 32 years old, and had always used gas for fuel purposes. When the stove arrived, she directed that it be placed in the kitchen where the former stove had been, and they, at her request, rolled back the linoleum, and found a hole large enough for a gas pipe, in the floor a few inches from the stove, which hole had been used in connecting the former stove. An examination, after the fire, showed an uncapped gas pipe under this hole in the kitchen, and the wood around it was charred. She told the men to connect the stove to it. Brigance, however, bored a hole through the wall to the adjoining room, and connected the stove to a pipe there, and did nothing to the hole near the stove. The plaintiff did not contemplate their doing this, but she was present all the time and made no objection. The workmen then turned on the gas and tested it, but none of them heard or smelled any escaping gas. Foley came by that afternoon, saw the stove after it had been set up, but made no inspection, nor was the stove lighted while he was there. Plaintiff left the house about 6:30 that afternoon and returned about 9 o'clock, but did not notice any gas escaping. The windows in the kitchen were closed, and the next morning while she was lighting the stove there was an explosion of gas which burned her badly, set the house on fire, and damaged her belongings.

The plaintiff urges that the court erred in sustaining the demurrer of the Foleys to the evidence. A demurrer to the evidence admits all of the facts which the evidence reasonably tends to establish, and all the inferences and conclusions which may reasonably be drawn therefrom; but, where the evidence introduced is insufficient to sustain a verdict or judgment in favor of the party introducing the evidence, it is not error for the court to sustain a demurrer to such evidence. Thelma Oil & Gas Co. v. Sinclair Gulf Oil Co. et al., 97 Okl. 5, 222 P. 686; Farmers' State Bank v. Jordan, 61 Okl. 15, 160 P. 53.

Then let us consider the evidence in the light of this demurrer which questions the sufficiency thereof. The plaintiff alleged that defendants Foley were guilty of negligence, in that they rented to her a house "unfit for human occupation," in that there was an open and uncapped gas pipe beneath the floor of the kitchen, which fact was known at the time, to the defendants, but not to the plaintiff, and that this pipe caused the explosion. The plaintiff was holding under an oral lease containing no warranties as to the condition of the house. It is a well-recognized principle of law that, in the absence of a statute, or an agreement, there is no implied warranty that leased premises are suitable for the purposes for which they are demised. Horton v. Early, 39 Okl. 99...