Lucas v. Brown, 10349.

• Citation: 82 F.2d 361
• Decision Date: 18 March 1936
• Docket Number: No. 10349.,10349.
• Parties: LUCAS v. BROWN.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

82 F.2d 361 (1936)

LUCAS v. BROWN.^*

No. 10349.

Circuit Court of Appeals, Eighth Circuit.

March 18, 1936.

Thomas J. Kennedy, of Omaha, Neb. (Fred A. Wright and Wright & Kennedy; all of Omaha, Neb., on the brief), for appellant.

G. L. DeLacy, of Omaha, Neb. (Kennedy, Holland, DeLacy & Svoboda, of Omaha, Neb., on the brief), for appellee.

Before GARDNER, WOODROUGH, and VAN VALKENBURGH, Circuit Judges.

VAN VALKENBURGH, Circuit Judge.

Appellee Samuel R. Brown of Hollywood, Cal., is the owner of a large brick house at No. 2501 Farnam street in Omaha, Neb., known as the Brown House. For several years prior to July 1, 1931, the premises had been leased to one Mrs. Kemp, who in turn, in July, 1928, subleased the entire building to one William Sheeley and his wife. The sublessees remained in possession until July 1, 1931, paying to Mrs. Kemp a monthly rental of $60. Some time prior to July, 1931, Mrs. Kemp advised the lessor she would discontinue her tenancy. She collected the rent for June from Sheeley and turned it over to the National Company of Omaha, which had taken over the rental of the property for the nonresident owner. Some time in June, or about the 1st of July, 1931, Mr. Arthur B. Martin, a representative of the National Company, visited Sheeley at the Brown House with reference to rerenting the property. While there Sheeley pointed out to Martin the rotted condition of a "stringer" or support to one of the steps of the stairway leading to the front porch of the building. This timber was not readily seen from the surface of the stairway. Sheeley testifies that "Mr. Martin looked at the stairs and examined them and said he would write to the owner, Mr. Brown who lived in California, and find out what he could do about fixing the steps." Mr. Martin testifies that: "On July 1, 1931, we accepted Sheeley as a lessee for the Brown House from Mrs. Kemp at a monthly rental of $65.00, $5.00 of which sum was for the rental of the garage in the rear. The July rent was paid by Sheeley on July 9th." Sheeley testifies that during all the time he rented the property he rerented the rooms in the building to various people. The house contained about seventeen rooms, in which eight or ten subtenants resided. July 1, 1931, Arthur W. Lucas rented from Sheeley three rooms on the third floor of the building. He furnished these rooms, and brought his mother, plaintiff below, to live with him. They cooked in their apartment. July 21, 1931, as the plaintiff was ascending the stairway leading to the porch for entrance to the building, the rotted support under one of the steps, to which reference has been made, gave way; the plaintiff fell and sustained injuries for which she brought suit against the owner Brown. At the close of all the evidence, counsel for defendant moved the court to instruct the jury to return a verdict in favor of defendant. The motion was sustained, judgment entered accordingly, and this appeal followed.

The trial court thought the case governed by Davis v. Manning, 98 Neb. 707, 154 N.W. 239, and the decisions of this court in Midland Oil Co. v. Thigpen, 4 F. (2d) 85, 53 A.L.R. 311, and Fraser v. Kruger et al., 298 F. 693. We adhere to the rules announced in these cases, to wit, that ordinarily the duties and liabilities of a landlord to persons on leased premises by invitation of the tenant are the same as those owed to the tenant himself; that a subtenant, servant, employee, guest, or invitee of the tenant is so identified with the tenant himself that his right of recovery for injury as against the landlord is the same as that of the tenant, if he suffers injury; that, where there is no agreement by the landlord to repair, and he is not guilty of any fraud or concealment, by failing to disclose hidden defects of which he has knowledge, a tenant, to whom the defects, if any, are as patent as to the lessor, takes the risk of safe occupancy, and the landlord is not liable to the tenant nor to his invitees for personal injuries sustained.

The rule in Nebraska is not otherwise. Roberts v. Rogers (Neb.) 261 N.W. 354; Rankin v. Kountze Real Estate Co., 101 Neb. 174, 162 N.W. 531; Davis v. Manning, 98 Neb. 707, 154 N.W. 239.

Of course, where premises are leased for public or semipublic purposes, and, at the time of lease, conditions exist which render them unsafe for the purpose intended, and the landlord knows, or by the exercise of reasonable care ought to know, of these conditions, and a third person suffers injury on account thereof, the landlord is liable because the third person is upon the premises at the invitation of the landlord as well as of the tenant. Fraser v. Kruger et al., supra.

"A sub-tenant is not deemed to be one of the general public so as to have a right of action against the original landlord, when the general public's right would be greater than that of the tenant, although there is some authority to the effect that a sub-tenant may recover against the landlord for injuries resulting from a dangerous nuisance existing at the time of the letting." 36 C.J. par. 918, p. 229.

From both testimony and correspondence presented by the record the following further facts appear: After his examination of the premises in June, or about the 1st of July, 1931, Martin made report to W. E. Spear, trust officer of the First National Bank of Omaha, of which the said National Company apparently formed a department. At some date not appearing in the record Spear, in connection with other matters concerning the property in question, forwarded the Martin report to the defendant in Hollywood. July 11, 1931, defendant wrote to Spear a letter containing the following:

"I note that you are able to keep 2501 Farnam occupied. Have you already rented it, and for how much? As your letter was not clear as to whether it was rented now, or was going to be rented. If nothing has been done yet try and get more than $55.00 a month for it, but if it isn't possible I will take that figure.

"Also I note from the report Mr. Martin of the First Trust Company made on the property that the steps and porch are in dangerous condition. I think these should be repaired when the house is rerented."

To this, July 15, 1931, Spear replied: "In your letter of July 11, 1931, you inquire as to whether your property is now rented. We have a tenant on a month to month basis at $60.00 a month. Our Rental Department advises that they are attending to the repair of the steps and porch."

As stated, the injury to appellant occurred July 21, 1931. The stairway was not repaired before that date. We think the liability of the owner, if any, depends largely, if not entirely, upon the question of control of the premises at the time of the reletting to Sheeley. Until in June, 1931, defendant had relations only with his lessee, Mrs. Kemp. When her tenancy ceased, defendant, through his agents, sought a reletting of the premises. When the former term expires, the owner has the right of entry and the power to abate any dangerous condition that may be known to exist. Sheeley was there in full possession of the entire building as a subtenant of Mrs. Kemp. His right of possession expired with her's on July 1, 1931; but he was permitted to remain as a tenant from month to month, without actual possession being retaken by the landlord in the meantime. Defendant had been made aware, through the knowledge of his agents, and through their report, of the dangerous condition of the stairway which formed one of the necessary approaches for entrance to the building by...