Leonard v. Enterprise Realty Company
| Decision Date | 26 March 1920 |
| Citation | 187 Ky. 578 |
| Parties | Leonard v. Enterprise Realty Company. |
| Court | Kentucky Court of Appeals |
Appeal from Jefferson Circuit Court (Common Pleas Branch, Third Division).
GRUBBS & GRUBBS and ELMER C. UNDERWOOD for appellant.
FRED FORCHT and ALFRED SELLIGMAN for appellee.
Appellee owns a building two stories in height on the northwest corner of First street and Broadway in the city of Louisville, the lower story consists of five store rooms, above each of which is an apartment designed for family purposes. The store room and apartment at the corner are occupied by a druggist. The four remaining stores front on First street, and were rented to different tenants. There is a cellar under each of the stores, in one of which is located the gas meters for the several stores and apartments.
Appellant was a dental student. Desirous of going to housekeeping he and his wife had been on the lookout for an apartment, and having learned that one of appellee's apartments would likely be vacant he inquired of the agent and was informed that one of the tenants had been notified to vacate, but it was uncertain when he would do so. Between four and five o'clock on the afternoon of December 19, 1917, while passing the corner appellant saw a moving wagon in front of the building; he entered the apartment and procured from one of the men in charge of moving the furniture a key to the rear door. He went immediately to the agent's office, reaching there about 5 p.m., reported he had the key and asked permission to look at the apartment, which was granted. References previously given by him having proven satisfactory he was told that after an inspection of the apartment to advise the agent if he wanted it. After supper appellant and his wife went to the apartment, arriving there about 6:30 p.m. He told his wife to remain on the sidewalk while he went around to the rear of the building and unlocked the rear door so that he could come through and let her in the front way. Appellant unlocked the back door, which leads into a kitchenette; he walked through this and entered the front hall it was dark and not knowing how close he was to the stairway he struck a match to find his way. As he did so an explosion took place, as a result of which he was terribly burned and disfigured. We will not detail the frightful and painful experiences through which appellant passed. The explosion was caused by the presence of gas. Appellant says when he entered the kitchenette he detected the odor of gas, but did not think anything about it. The electricity was turned off, and to see where he was walking he struck the match.
A member of the salvage corps and a representative of the gas company responded to the alarm of fire following the explosion and found the service pipe in the kitchenette, from which the gas stove had been detached, was open and uncapped and gas was flowing into the room from this pipe. There was no stop-cock or means by which gas could be turned off in the apartment; this had to be done in the basement. It is the theory of appellant that the man who disconnected the stove failed to properly shut off the gas, but this man testified that before he disconnected the stove he lighted the gas to see if it was on and left it burning while he went to the basement, leaving instructions with his helper that when the light went out to knock on the pipe. He says he turned the gas off, heard a knock on the pipe, came upstairs, lighted some matches to see if it would burn and finding it would not he then disconnected it.
Appellant also introduced a tenant occupying the apartment immediately north of the one in which appellant was injured, who testified that on the afternoon of the explosion the gas in her room went out and she tried the gas in her kitchen and it would not burn, and finding there was someone in the basement she told the man he had turned off her gas; thereafter her gas began flowing again. From this testimony the argument is made that the witness Arnold, who disconnected the stove, either did not turn off the gas in the vacant apartment, or if he did someone later turned it on, as the gas was found flowing freely at the time of the fire. From the view we take of the case it matters not which if either of the two theories might be true, because in neither event would appellee be liable.
To entitle appellant to a recovery defendant must have been negligent. There can be no negligence in the absence of an imposed duty. To constitute actionable negligence justifying a recovery, facts showing the existence of a duty to plaintiff by defendant must be shown as well as a violation of that duty on defendant's part resulting in damages to plaintiff.
It is essential that we first ascertain the status of appellant. He was not a trespasser to whom defendant was under no obligation as to the condition of the premises. He was only a prospective tenant, hence the rule applicable between a landlord and tenant did not apply. He was either a licensee or invitee. We shall not enter into a discussion as to the distinction between the two, a distinction oftentimes shadowy and indistinct.
The Supreme Court in Bennett v. L. & N. R. R. Co., 102 U. S. 584, quoting Campbell on Negligence, says the principle appears to be that invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using it.
Counsel for plaintiff insists his client was an invitee and we shall treat him as such.
The owner who expressly or by implication invites or induces others to come upon his premises, whether for business or other purposes, owes to them the duty of being reasonably sure he is not inviting them into danger, and must exercise ordinary care and prudence to render the premises reasonably safe. 29 Cyc. 453, 20 R. C. L., sec. 51; Cooley on Torts, p. 1259; Shearman & Redfield on Negligence, sec. 796; Thompson on Negligence, sec. 968; Southern Ry. Co. v. Goddard, 121 Ky. 567, 89 S. W. 675; Beard v. Klusmeier, 158 Ky. 153, 164 S. W. 319. But this is the extent of the duty and the owner or occupier is not an insurer as to the safe condition of the premises. Branham's Admr. v. Buckley, &c., 158 Ky. 848, 166 S. W. 618; Flynn v. Central R. R. Co., 142 N. Y. 444.
Another principle applicable here is that a defendant usually...
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