McKenna v. Grunbaum

• Decision Date: 08 April 1920
• Citation: 190 P. 919,33 Idaho 46
• Parties: HELEN A. McKENNA and FRANCES PALMER McKENNA, Appellants, v. LEO P. GRUNBAUM and STUDEBAKER BROTHERS COMPANY OF UTAH, Respondents
• Court: Idaho Supreme Court

190 P. 919

33 Idaho 46

HELEN A. McKENNA and FRANCES PALMER McKENNA, Appellants, v. LEO P. GRUNBAUM and STUDEBAKER BROTHERS COMPANY OF UTAH, Respondents

Supreme Court of Idaho

April 8, 1920

PLEADING AND PRACTICE-NONSUIT-DAMAGES FOR PERSONAL INJURIES-CONTRIBUTORY NEGLIGENCE-LANDLORD AND TENANT.

1. A motion for nonsuit admits the truth of plaintiff's evidence and of every fact which it tends to prove or which could be gathered from any reasonable view of it, and he is entitled to the benefit of all inferences in his favor which the jury would have been justified in drawing from the evidence had the case been submitted to it.

2. Contributory negligence is generally a question of fact for the jury, and only becomes one of law, authorizing a nonsuit when the evidence introduced on behalf of the plaintiff is reasonably susceptible of no other interpretation than that the conduct of the injured party contributed to his injury and that, because of his negligence and carelessness, he did not act as a reasonably prudent person would have acted under the circumstances.

3. It is the duty of the landlord to use reasonable care to keep an elevator which remains under his control and is used in common by his tenants, or by himself and his tenants, in as safe condition as it was apparently in when the tenancy began.

4. The owner of leased property, in the absence of a contract to the contrary, is not bound to improve or repair it, but if he does so voluntarily, he may be liable for damages resulting from lack of reasonable care in so doing.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles P. McCarthy, Judge.

Action for damages. Judgment of nonsuit. Reversed.

Judgment reversed. Costs awarded to appellants.

J. B Eldridge and Chas. F. Reddoch, for Appellants.

On motion by the defendant for nonsuit after the plaintiff has introduced his evidence and rested his case, the defendant must be deemed to have admitted all the facts of which there is any evidence and all the facts which the evidence tends to prove, and the evidence must be interpreted most strongly against the defendant. (McAlinden v. St. Maries Hospital Assn., 28 Idaho 657, Ann. Cas. 1918A, 380, 156 P. 115; Southern Idaho Conference Assn. etc. Adventists v. Hartford Fire Ins. Co., 26 Idaho 712, 145 P. 502; Culver v. Kehl, 21 Idaho 595, 123 P. 301.)

Where a landlord makes repairs, even though he is under no obligation to make them, he is liable for negligence. (1 Tiffany, Landlord and Tenant, p. 607; Stewart v. Cushing, 204 Mass. 154, 90 N.E. 545; Colorado Mortgage & Inv. Co. v. Giacomini, 55 Colo. 540, 136 P. 1039, L. R. A. 1915B, 364; Broame v. New Jersey Conference Campmeeting Assn., 83 N.J.L. 621, 83 A. 901; Upham v. Head, 74 Kan. 17, 85 P. 1017; Gill v. Middleton, 105 Mass. 477, 7 Am. Rep. 548; Wynne v. Haight, 27 A.D. 7, 50 N.Y.S. 187.)

Where a landlord undertakes to repair a defect in his premises, it is negligence not to repair it properly. (Wilcox v. Hines, 100 Tenn. 538, 66 Am. St. 770, 46 S.W. 297, 41 L. R. A. 278; Lipschitz v. Rapaport, 133 N.Y.S. 385; Salvetta v. Farley, 123 N.Y.S. 230; Dicker v. Roossin, 136 N.Y.S. 50; Nash v. Webber, 204 Mass. 419, 90 N.E. 872; Carlon v. City Savings Bank, 85 Neb. 659, 124 N.W. 91; Finer v. Nichols, 175 Mo.App. 525, 157 S.W. 1023.)

"Care in the construction and maintenance of freight elevators, while not as exacting as the rule of passenger elevators, is applied with full force under the reasonable ordinary care rule." (1 Thompson on Negligence, sec. 1081.)

In an action against landlord for negligence when employee of lessee was killed, evidence held to show landlord was guilty of negligence in maintaining elevator. (La Pray v. Lavoris Chemical Co., 117 Minn. 152, 134 N.W. 313.)

In an action for injury from falling upon stairs in a building in control of defendant (tenant), the question of his knowledge is one for jury. (Wheeler v. Sawyer, 219 Mass. 103, 106 N.E. 592.)

The tenant (Studebakers) had possession of the building and retained possession of the elevator; hence they are liable for any defects of the shaft or gates for that reason. ( Thomas v. Vannucci, 185 Ill.App. 414; Hamilton v. Edwards, 56 Pa. S.Ct. 403; Alessi v. Fitzgerald, 217 Mass. 576, 105 N.E. 437, L. R. A. 1916F, 1135.)

Though under no obligation to repair, landlord is guilty of negligence, and liable for injuries if he rents place in dangerous condition. (Knight v. Foster, 163 N.C. 329, 79 S.E. 614, 50 L. R. A., N. S., 286; Mucller v. Phelps, 159 Ill.App. 590; 9 R. C. L. 1251.)

The evidence was certainly sufficient to show negligence. ( Domush v. Abraham, 148 N.Y.S. 139, 140; Pincus v. Schlechter, 167 A.D. 361, 153 N.Y.S. 67, 70.)

The question of contributory negligence was for the jury. ( Engel v. Smith, 82 Mich. 1, 21 Am. St. 549, 146 N.W. 21; Gordon v. Cummings, 152 Mass. 513, 23 Am. St. 846, 25 N.E. 978, 9 L. R. A. 640; Southern Building & Loan Assn. v. Lawson, 97 Tenn. 367, 56 Am. St. 804, 37 S.W. 86; Hydren v. Webb, 219 Mass. 542, 107 N.E. 355.)

Where on undisputed facts reasonable and fair-minded men may differ as to the inferences and conclusions to be drawn, or where different conclusions might reasonably be reached by different minds, the question of negligence is one of fact to be submitted to the jury. (Fleenor v. Oregon Short Line R. R. Co., 16 Idaho 781, 102 P. 897; Calkins v. Blackwell Lumber Co., 23 Idaho 128, 129 P. 435.)

A. A. Fraser and Chas. M. Kahn, for Respondent Grunbaum.

The law is well settled that there are no implied covenants on the part of the landlord to repair the premises or to keep them in repair unless he has expressly covenanted to do so by his lease. (Russell v. Little, 22 Idaho 429, 433, Ann. Cas. 1914B, 415, 126 P. 529, 42 L. R. A., N. S., 363; Wilson v. Treadwell, 81 Cal. 58, 22 P. 304; note to 3 Ann. Cas. 835.)

In the absence of warranty or representation, a landlord is under no duty to disclose to the tenant obvious defects in the premises, especially where there is an equal opportunity for observation on the part of each party; and no liability is imposed on the landlord for his failure to make known such defects. Hence personal injuries suffered by the tenant therefrom are not recoverable from the landlord. (City of Lewiston v. Isaman, 19 Idaho 653, 655, 115 P. 494; Hatch v. McCloud River Lumber Co., 150 Cal. 111, 88 P. 355; Rhoades v. Seidel, 139 Mich. 608, 102 N.W. 1025; Barron v. Liedloff, 95 Minn. 474, 104 N.W. 289; Harpel v. Fall, 63 Minn. 520, 65 N.W. 913; Land v. Fitzgerald, 68 N.J.L. 28, 52 A. 229; Whitehead v. Comstock & Co., 25 R. I. 423, 56 A. 446; Baker v. Moeller, 52 Wash. 605, 101 P. 231; Thompson v. Clemens, 96 Md. 196, 53 A. 919, 60 L. R. A. 580; Ames v. Brandvold, 119 Minn. 521, 138 N.W. 786.)

The trial court should grant a nonsuit where the allegations of the complaint have not been sustained, and in the case at bar the nonsuit was granted not so much on the question of facts, but on the questions of law involved. (Elder v. IdahoWash. Northern Ry. Co., 26 Idaho 209, 141 P. 982; Antler v. Cox, 27 Idaho 517, 149 P. 731; Goure v. Storey, 17 Idaho 352, 105 P. 794.)

Hawley & Hawley, for Respondent Studebaker Bros. Co.

A landlord is not liable for injuries resulting from obviously defective premises, known to be so by the tenant at the time of the leasing; the tenant assumes the risk thereof, and the rule of caveat emptor applies. (Note to Walsh v. Schmidt, 34 L. R. A., N. S., 799; note to Hines v. Willcox, 34 L. R. A. 824; O'Malley v. Twenty-five Associates, 178 Mass. 555, 60 N.E. 387; Baum v. Ahlborn, 210 Mass. 336, 96 N.E. 671; Lyon v. Buerman, 70 N.J.L. 620, 57 A. 1009.)

Where the landlord retains control of a freight elevator used in common, he is under the duty to maintain it in the condition in which it existed at the time the tenancy began, but is not bound to change its then mode of construction, or to remove the obvious sources of danger. (Freeman v. Hunnewell, 163 Mass. 210, 39 N.E. 1012; 8 Thompson, Negligence (White's Supp.), sec. 1138; Andrews v. Williamson, 193 Mass. 92, 118 Am. St. 452, 78 N.E. 737; Mikkanen v. Safety Fund Nat. Bank, 222 Mass. 150, 109 N.E. 889; Flanagan v. Welch, 220 Mass. 186, 107 N.E. 979; Ten Broeck v. Deinhardt, 120 A.D. 473, 105 N.Y.S. 59; Woods v. Naumkeag Steam Cotton Co., 134 Mass. 357, 45 Am. Rep. 344; Ward v. Blouin, 210 Mass. 140, 96 N.E. 61; Green v. Pearlstein, 213 Mass. 360, 100 N.E. 625; Doyle v. Union P. R. Co., 147 U.S. 413, 13 S.Ct. 333, 37 L.Ed. 223, see, also Rose's U. S. Notes.)

A tenant who, with full knowledge of the fact that a gate to a freight elevator is not working, knowing that the elevator is for freight only and that when used for freight a door must be opened wide and thereby the presence or absence of the elevator could be ascertained, walks hurriedly into the elevator entrance intending to use the elevator for passenger service, and, the gate being up and the elevator absent, falls into the shaft and is killed, is guilty of contributory negligence as a matter of law. (Patterson v. Hemenway, 148 Mass. 94, 12 Am. St. 523, 19 N.E. 15; Amerine v. Porteous, 105 Mich. 347, 63 N.W. 300; Everard v. City of New York, 89 Hun, 425, 35 N.Y.S. 315; Hansen v. State Bank Bldg. Co., 100 Iowa 672, 69 N.W. 1020; McCarthy v. Foster, 156 Mass. 511, 31 N.E. 385; Kennedy v. Friederich, 168 N.Y. 379, 61 N.E. 642.)

MORGAN, C. J. Rice, J., concurs. Budge, J., did not sit with the court nor participate in the opinion.

OPINION

MORGAN, C. J.

On February 24, 1915, Frank J. McKenna, husband of Helen A., and father of Frances Palmer McKenna, was killed by falling down an elevator shaft in a building owned by Leo P. Grunbaum and leased by him, in 1909 and 1910, to Studebaker Brothers Com...