Middleton v. Green

• Decision Date: 09 April 1929
• Docket Number: Civil 2774
• Citation: 276 P. 322,35 Ariz. 205
• Parties: EUGENE MIDDLETON and ELVIRA MIDDLETON, Appellants, v. LAURA ALICE GREEN, Appellee
• Court: Arizona Supreme Court

276 P. 322

35 Ariz. 205

EUGENE MIDDLETON and ELVIRA MIDDLETON, Appellants, v. LAURA ALICE GREEN, Appellee

Civil No. 2774

Supreme Court of Arizona

April 9, 1929

APPEAL from a judgment of the Superior Court of the County of Gila. C. C. Faires, Judge. Reversed and remanded.

Mr Charles L. Rawlins and Mr. George H. Rawlins, for Appellants.

Messrs Elliott & Snell, for Appellee.

OPINION

McALISTER, J.

The defendants were the owners of the "Middleton apartments" in Globe Arizona, and on May 3d, 1927 rented apartment No. 11 thereof to the plaintiff and her son, Albert E. Green, who moved into it that day. There was at that time an outside step at the rear entrance to this apartment, and in the afternoon of the day plaintiff moved in she started out of the apartment through this entrance, and in attempting to step out placed her foot on this step, with the result that it turned over and threw her to the ground with great force, causing painful and severe injuries to her body, among which were broken ribs. She filed suit for damages and recovered judgment for $2,000, and it is from this judgment, entered upon the verdict of the jury, as well as from the order denying their motion for a new trial, that defendants appeal.

The facts upon which plaintiff relies to show negligence on the part of defendants are stated in this language:

"That at the time defendants rented said apartment to plaintiff and plaintiff's son, defendants negligently permitted and allowed to exist a nuisance and dangerous condition in and on said premises and said apartment, in that the outside doorstep, which consisted of one raise, to the rear or southerly entrance in said apartment No. 11, and which step was provided by defendants for egress and ingress to said apartment through said rear entrance, was loose and not nailed, and because of such condition was capable of turning and slipping in a dangerous manner; that at the time defendants rented said apartment to plaintiff and plaintiff's son, defendants knew the condition of said step, and were aware of its dangerous nature; that defendants did not advise plaintiff or plaintiff's son at any time of the dangerous condition of the said step."

The answer is a general demurrer and a general denial; and the first assignment is that the court erred in overruling the demurrer. The action is one for personal injuries, which, it is alleged, resulted from defendants negligently permitting and allowing to exist on the premises "a nuisance and dangerous condition," in that the outside doorstep at the rear entrance of the apartment, which was provided by the defendants for the use of those entering and leaving the apartment through this door, "was loose and not nailed, and because of such condition was capable of turning and slipping in a dangerous manner."

Appellant contends that the allegation that the doorstep constituted "a nuisance and dangerous condition" is a mere conclusion of law, and that the facts specially pleaded to show that a nuisance and dangerous condition did exist are not sufficient. It is claimed that the statement that the step was "loose and not nailed" does not have this effect, and that the other averment relied on for this purpose, "and because of such condition was capable of turning and slipping in a dangerous manner," is likewise a mere conclusion. Whether these special averments show the existence of "a nuisance and dangerous condition" is immaterial if they sufficiently disclose facts which, if true, would constitute negligence on the part of the defendants. Eliminating this expression as a conclusion the following allegations remain: That the defendants, the owners of the building, negligently permitted to exist on the premises in question at the rear entrance of apartment No. 11 an outside doorstep, used for going in and out of said apartment, which "was loose and not nailed, and because of such condition was capable of turning and slipping in a dangerous manner"; that defendants knew the dangerous condition of this step when they rented the apartment to plaintiff, but did not advise her or her son of it. It occurs to us that when the owner of a building, who knowingly permits to remain at one of its entrances for the use of those going in and out of it a doorstep that is loose and unnailed and due to this condition may turn and slip in a manner that is dangerous to those using it, fails to advise those to whom he rents it of the existence of this condition he is guilty of negligence and liable for any damages that may result therefrom. The facts, perhaps, could have been stated with more definiteness, but they appear sufficiently to enable the court to understand how the accident occurred, and therefore to determine whether the complaint states a cause of action.

Appellants contend, further, however, that in the absence of express contract to the contrary, or a statute, a tenant takes demised premises as he finds them, and that no implied warranty by the landlord that they are safe or fit for the purpose for which they are hired exists. In other words, the maxim caveat emptor applies. This is the general rule, but to it there is a well-recognized exception which applies to the facts of this case and is stated by Underhill on Landlord and Tenant, volume 2, page 792, in this language:

"The landlord who lets the premises in a dangerous condition or with an existing nuisance thereon, or relets them after the tenant has created a nuisance thereon may be liable for injuries resulting from the dangerous condition or nuisance. The rule is not confined to what may be called technically a nuisance. It extends to any unsafe or dangerous condition of the premises. Thus, the owner of premises who, knowing them to be unsafe and dangerous, demises them in that condition without providing for their repair will be liable for damages which are caused by the injury which is the natural consequence of their dangerous condition."

See, also, the following: 16 R.C.L. 1035, 1042, 1069 and 1078; Murrell v. Crawford, 102 Kan. 118, 169 P. 561; 36 C.J. 206, § 877 cc; Wilcox v. Hines, 100 Tenn. 538, 66 Am. St. Rep. 770, 41 L.R.A. 278, 46 S.W. 297; Mesher v. Osborne, 75 Wash. 439, 48 L.R.A. (N.S.) 917, 134 P. 1092.

Appellee was injured May 3d, and on the 30th of June and of August following she was examined by Dr. C. E. Irvin, of Miami, who testified as an expert relative to his findings. He stated upon direct examination that when she came to his office she told...