O'Neil v. Brown

• Decision Date: 19 March 1914
• Parties: O'NEIL v. BROWN et al.
• Court: Kentucky Court of Appeals

164 S.W. 315

158 Ky. 118

O'NEIL v. BROWN et al.

Court of Appeals of Kentucky.

March 19, 1914

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Action by Elizabeth O'Neil against Patrick J. Brown and others. Judgment for defendants, and plaintiff appeals. Affirmed.

O'Doherty & Yonts and Henry W. Sanders, all of Louisville, for appellant.

O'Neal & O'Neal, of Louisville, for appellees.

HANNAH J.

Elizabeth O'Neil sued Julia P. Brown and Patrick J. Brown, her husband, in the Jefferson circuit court to recover damages for injuries claimed to have been received by her as the result of the falling of the stairs leading from the basement to the first floor of a house which the said plaintiff had rented from the defendants by verbal lease, the plaintiff alleging that the defendants agreed and bound themselves by the terms of said verbal lease to keep and maintain the premises in good condition of repair, and that they negligently permitted the stairs to become and remain in an unsafe condition, thereby causing her injuries. Upon a trial of the action, the court directed a verdict for the defendants upon the ground that the plaintiff failed to prove a contract to keep and maintain the premises in good condition of repair, and plaintiff appeals.

It appears from the record that, after plaintiff and the physician who attended her had testified, the court indicated that a verdict would be directed for the defendants upon the ground above stated; and that thereupon the court, together with the plaintiff and the attorneys for the respective parties, repaired to the chambers of the judge, and there the following testimony was given by plaintiff: "Q. (By the court) In answer to the questions of the lawyers, did you say all that was said between you and Mrs. Brown when you rented the property? A. Yes, sir; she said to me when I went to rent the property that she wanted $10 for it. I told her I felt like I could not pay $10. She said: 'Well, I cannot let the house go under $10. We keep our property in such good repair that I could not afford to let it go under $10.' I said, 'Mrs. Brown, you know your rent would be good.' She said that she could not let it go under $10. I said 'Very well, I will take it at $10.' Q. (By the court) All that was said about keeping the property in repair was that she kept it in such repair that they could not let it go under $10? A. She kept it in such good repair that she could not let it go under $10."

Thereupon plaintiff's attorney offered to ask her this question "Did or not Mrs. Brown, at the time you made the contract with her for this property, agree and promise to keep this property in repair during the time you had it?" And this question the court refused to permit plaintiff to answer; and properly so. The question calls for the conclusion of the witness.

On her examination in chief, before the jury, the plaintiff was asked this question: "Was or not there any agreement between you with relation to...