Nehring v. Ferguson

• Decision Date: 29 January 1935
• Docket Number: Case Number: 23781
• Citation: 1935 OK 85,170 Okla. 383,40 P.2d 1040
• Parties: NEHRING v. FERGUSON.
• Court: Oklahoma Supreme Court

1935 OK 85

40 P.2d 1040

170 Okla. 383

NEHRING v. FERGUSON.

Case Number: 23781

Supreme Court of Oklahoma

Decided: January 29, 1935

Syllabus

¶0 1. TRIAL--Demurrer to Evidence--Failure of Evidence of Plaintiff.

Where the proof upon trial wholly fails to prove facts sufficient to establish liability against the defendant, a demurrer to the evidence is properly sustained.

2. LANDLORD AND TENANT--Landlord not Obligated to Keep Business Building in Repair in Absence of Contract and not Liable for Injuries to Tenant's Employee Caused by Defects.

A landlord who rents rooms in a business building for manufacturing purposes, in the absence of any agreement between the parties, is under no obligation to his tenant to keep the premises in repair and is not liable for injury to an employee of the tenant caused by said defects.

Appeal from District Court, Kingfisher County; O. C. Wybrant, Judge.

Action by Esther Nehring against J. B. Ferguson. Judgment for defendant, and plaintiff appeals. Affirmed.

D. D. Jennings and Morrison, Morrison & Morrison, all of Oklahoma City, for plaintiff in error.

McKeever, Elam, Stewart & McKeever and Harry C. Kirkendall, all of Enid, for defendant in error.

PER CURIAM.

¶1 This is an action originally brought by Esther Nehring against J. B. Ferguson in Garfield county and removed and tried in Kingfisher county.

¶2 The plaintiff alleges in her amended petition that the defendant was the owner of a five-story building in the city of Enid, Okl.; that it was rented to various tenants; that a portion of the fifth floor was rented to Rochester Handkerchief Company, and the remainder to various other tenants. That she was in the employ of the Rochester Handkerchief Company, that the defendant from the time the building was constructed, and during all times mentioned, erected a common roof over the fifth floor and controlled the entire fifth floor by his agents and servants; maintained the ceiling and roof in all the offices and rooms in said building occupied by the Rochester Handkerchief Company.

¶3 That on June 4, 1929, while plaintiff was present in the portion of the building occupied by the Rochester Handkerchief Company, by reason of act of carelessness and negligence of said defendant, his servants and agents and employees, having the management and control of the building, the plaintiff was struck by the fall upon her head and body of a large quantity of plaster from the ceiling of said building and was injured thereby.

¶4 That the defendant, his agents, servants, and employees and viceprincipals in charge of said building were guilty of negligence, and carelessness directly and proximately causing plaintiff's injuries as follows:

¶5 That the plaster on the ceiling of the rooms occupied by the Rochester Handkerchief Company had been in a cracked, loose, and defective condition and liable to fall for a period of three or five years prior to the 4th day of June, 1929, and that the defendant, his agents, servants, and employees, knew of the defective condition in time to have made proper and necessary repairs. That they failed, neglectfully and carelessly, to make timely repairs, and that the roof of said building was in a dilapidated and defective condition six months prior to the 4th day of June, 1929, resulting from water from rains and snows passing through the same and on the plaster upon the ceiling of the room in which plaintiff was injured. That at that time Mr. Crisler and the janitor were notified that the roof and ceiling were in a dilapidated and defective condition, at which time promises were made by both to remedy the condition.

¶6 Plaintiff further alleges that for a period of three to five years prior to the 1st day of January, 1929, the defendant through his agents, servants, and employees undertook to make repairs of said roof and ceiling, and that they did not properly make such repairs but only made temporary repairs. That on account of the failure to make the necessary repairs and to exercise ordinary care in making such repairs, the defendant maintained and caused to exist unnecessary and dangerous common nuisances which continually exposed the occupants of the premises occupied by the Rochester Handkerchief Company to constant danger of bodily injury therefor, and that the plaintiff was injured thereby. That her skull was fractured and that her spinal column in the cervical region was contused and injured; that she was confined in a hospital for ten days, she suffered great and excruciating physical pain, nervous shock and mental anguish; that her nervous system had been permanently shocked, injured, and impaired, her sense of vision, recollection, and equilibrium have been seriously and permanently injured. That prior to her injuries she was a strong and active woman of the age of twenty-five years, that she earned approximately $70 per month, and that by reason of the injury, effects and consequences thereof, her earning power and capacity will be either greatly impaired or totally destroyed.

¶7 The defendant, J. B. Ferguson, answered by way of general...