Plante v. Zear

• Citation: 31 Ind.App. 433,68 N.E. 312
• Parties: LA PLANTE v. LA ZEAR.
• Decision Date: 13 October 1903
• Court: Court of Appeals of Indiana

31 Ind.App. 433

68 N.E. 312

LA PLANTE

v.LA ZEAR.

Appellate Court of Indiana, Division No. 2.

Oct. 13, 1903.

Appeal from Circuit Court, Daviess County; M. S. Hastings, Special Judge.

Action by Mary La Zear against Katharine La Plante. Judgment for plaintiff, and defendant appeals. Affirmed.

C. E. Dailey, C. K. Tharp, and John T. Goodman, for appellant. Padgett & Padgett and Cullop & Shaw, for appellee.

WILEY, J.

Appellee was a tenant of appellant, and was injured by the breaking of alleged defective steps leading to the house. This action was to recover damages resulting from such injuries. The complaint was in two paragraphs, to each of which a demurrer was overruled. Answer in denial, trial by jury, verdict and judgment for appellee. Errors relied upon for a reversal are the overruling of the demurrers to each paragraph of complaint, and overruling appellant's motion for a new trial.

The amended first paragraph of complaint avers that appellant was the owner of a certain lot upon which was a dwelling house of two apartments; that each of said apartments consisted of three rooms down and one room up stairs; that appellee rented one of the apartments, and was occupying it as a tenant of appellant; that the other apartment was leased to and occupied by another tenant; that said house had front steps, porch door, and a hallway, used in common by both families residing therein, and were for the use of both families; that on the 20th day of June, 1900, while appellee and the other tenant were occupying and using said premises, one of the boards in one of the front steps leading to said house became out of repair; that appellant was notified to repair the same; that she came to examine it, and promised to make the necessary repairs; that said step prior thereto had been out of repair for a long time, and that appellant knew of such fact; that on the 23d day of June, 1900, appellee was desirous of going from the house to the street, and, while descending said steps to the walk below, avoided stepping on the aforesaid broken step, and stepped upon another in the course of steps, which board by her from the top step appeared to be safe and free from defects; that when she stepped upon said step the board broke and gave way suddenly under her weight, whereby she was thrown to the ground and violently and permanently injured; that the board that broke was defective in this; that the underside thereof was decayed and cracked and weak, and on account thereof was unfit for the purpose for which it was used; that, it being on the underside, appellee could not see the defect, which condition she was unable to know by using the same as a means of ingress and egress to and from the common entrance to said house; that appellant knew at the time appellee became her tenant that said step was out of repair, or could have known it by the exercise of ordinary care and diligence; that she was negligent and careless in not having the same in good and safe repair for her tenants, who were required to use the same in common as a means of entering and leaving said house; that she was also negligent in failing to repair the same before appellee became her tenant, so that it would have been safe for use; that said steps were inclosed so that one using them could not see the underside of the boards, and hence appellee was unable to know the condition thereof; that said steps were not under the control or dominion of appellee, for the reason that they were used in common by all of appellant's tenants occupying the house, it being a common passageway, and that appellant was still occupying the same under her dominion and possession for and on account of said reason; that by reason of said facts her injury was caused without fault or negligence on her part, but wholly on account of the fault and negligence of the appellant. The second paragraph is not materially different from the first, and it is unnecessary to give even an abstract of it. Both paragraphs proceed upon the theory that appellant rented the house, with different apartments or tenements, to two different tenants, and that she kept possession of and exercised dominion over the steps, etc., as a common passageway for the tenants occupying the premises, and that she was charged with the duty of keeping such common passageway in repair, and safe for use, and that she failed to do so. It is only upon this theory, if at all, the complaint states a cause of action.

Appellant predicates her right to a reversal upon the theory that a landlord is not bound to make repairs in the absence of a covenant to do so, and further that there is no implied warranty or covenant that the demised premises are fit, or shall continue to be so, for the purposes for which they are leased. There is no doubt but that this is the general rule, as applicable to ordinary tenancies, for all of the authorities so hold. We mean by the expression of “ordinary tenancies” where property is leased to a single tenant. In such case the lessee has the exclusive possession of, and exercises absolute dominion over, the entire leased premises, in the absence of any reservation or exceptions expressed in the contract. We need not stop to cite authorities in support of this familiar proposition. The only Indiana case cited by appellant upon the proposition that the complaint was insufficient to withstand a demurrer is Purcell v. English, 86 Ind. 34, 44 Am. Rep. 255. That case is not decisive of the question here involved, for two reasons: (1) In that case the injury resulted to the tenant by reason of a temporary covering of snow and ice on a stairway leading to her apartments, which obstruction was open and obvious, and for which the landlord was not in any way responsible. (2) The question here involved was not in issue in that case, and the court expressly said that it was not decided, and used the following language: “Whether a landlord hiring apartments to many tenants is liable for latent defects, or for fault of construction, or for permanent defects in the common passageways, we do not decide.” The facts in the Purcell-English Case, supra, were so dissimilar to the facts stated in the complaint before us that the decision there does not necessarily declare the law applicable to the facts here. The authorities are not in harmony, but the weight of them declare the rule to be that where the landlord leases separate portions of the same building to different tenants, and reserves under his control those parts of the building or premises used in common by all the tenants, he is under an implied obligation to use reasonable diligence to keep in a safe condition the parts over which he so reserves control. 18 Am. & Eng. Encyc. of Law (2d Ed.) 220; Phillips v. Library Co., 55 N. J. Law, 307, 27 Atl. 478;Alperin v. Earle, 55 Hun, 211, 8 N. Y. Supp. 51;Rouillon v. Wilson, 29 App. Div. 307, 51 N. Y. Supp. 430;Karlson v. Healy, 38 App. Div. 486, 56 N. Y. Supp. 361;Blake v. Fox (Com....