Primus v. Bellevue Apartments, 47709

• Decision Date: 17 October 1950
• Docket Number: No. 47709,47709
• Parties: , 25 A.L.R.2d 565 PRIMUS v. BELLEVUE APARTMENTS et al.
• Court: Iowa Supreme Court

Page 347

44 N.W.2d 347

241 Iowa 1055, 25 A.L.R.2d 565

PRIMUS v. BELLEVUE APARTMENTS et al.

No. 47709.

Supreme Court of Iowa.

Oct. 17, 1950.

Harper, Gleysteen & Nelson, of Sioux City, for appellants.

Kindig & Beebe, of Sioux City, for appellee.

OLIVER, Justice.

Plaintiff was injured November 15, 1946. He was then eighteen months of age. For some months he and his parents had occupied an apartment in Bellevue Apartments, Sioux City. His parents had leased this apartment from defendants who operated the apartment building. Defendants maintained in the basement of this building a laundry room and laundry machinery which the various lessees of apartments were entitled to use in common, as appurtenant to the apartments leased to them. On the day in question plaintiff was taken to the laundry room by his mother who proceeded to operate an electric mangle. While she was so engaged plaintiff's right hand was caught and injured in the unguarded machinery in the gear box of the mangle, pictured in the following exhibit.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Plaintiff screamed in agony until he was given a sedative at a hospital to which he was taken. He was operated upon under a general anesthetic. He remained in the hospital five days and his hand was kept bandaged for about six weeks. Later it was given hot water treatments. He suffered some pain and lost strength. The doctor testified plaintiff's right hand was mangled, the little finger was off at the base, the third finger at about the base and the second finger at the first joint. The top of the index finger was crushed and the thumb was cut but these were saved and plaintiff has full motion of the thumb and first finger. His hand was still tender at the time of the trial, two and one half years later. He was right handed and could still do some things with his right hand but used his left also. His father testified plaintiff gets along well with his friends but strange children 'notice his hand and shy away from it.'

Plaintiff's action for damages, tried to a jury, resulted in a verdict and judgment against defendants for $12,500 from which they prosecute this appeal. Most of the errors assigned stem from the overruling of defendants' motions for directed verdict, for new trial and for judgment notwithstanding verdict, predicated upon the asserted insufficiency of the evidence to prove negligence on the part of defendants which was the proximate cause of plaintiff's injury. In considering such assignments of error the evidence will be viewed in the light most favorable to plaintiff.

I. Defendants contend there was no evidence they exercised any control over the laundry except to make a time schedule for the tenants. Affirmative proof of specific acts of control by defendants was not required. In the language of Morse v. Houghton, 158 Iowa 279, 282, 136 N.W. 675, 677: '* * * as the stairway was made use of by the several tenants, this remained in control of the defendant, and she was bound to keep the same in reasonable repair * * *.'

In the absence of proof to the contrary a landlord is presumed to have retained control over premises used in common by different occupants of his property. Starr v. Sperry, 184 Iowa 540, 544, 545, 167 N.W. 531; Iverson v. Quam, 226 Minn. 290, 32 N.W.2d 596, 600; Chalfen v. Kraft, 324 Mass. 1, 84 N.E.2d 454, 456.

However, in the case at bar one of defendants' employees testified: 'Amongst other things, I have charge of the laundry room.' Moreover, defendants' answer admitted they maintained the laundry, tenants were given the privilege of using it and the laundry machinery was owned and controlled by defendants and supplied by them 'to the tenants as a part of the service for which they were paying rent.' That defendants had control of the laundry room and machinery is not open to serious question under the record.

II. Defendants point out they did not warrant or misrepresent or conceal the condition of this part of the premises or agree to repair existing defects therein. They assert also the defect, if any, in the mangle, was open and obvious and existed prior to the time plaintiff's parents leased the apartment from defendants. Hence, they contend they are not liable for injuries to tenants or members of their families caused by such defect. Defendants rely largely upon authorities having reference to defects in parts of the rented premises of which the tenant has possession and over which the landlord does not have control. As already noted, the record in this case shows defendants had control over the laundry room and machinery and maintained the same for the common use of their tenants.

It is the rule in Iowa and in most other jurisdictions that under such circumstances the landlord is subject to liability for injuries resulting from his failure to exercise reasonable care to keep such portions of the premises reasonably safe for such use. Burner v. Higman & Skinner Co., 127 Iowa 580, 588, et seq., 103 N.W. 802; Dillehay v. Minor, 188 Iowa 37, 175 N.W. 838, 11 A.L.R. 106; Hull v. Bishop-Stoddard Cafeteria, 238 Iowa 650, 677-679, 26 N.W.2d 429, 445; 32 Am.Jur. 561, Landlord and Tenant § 688; 52 C.J.S., Landlord and Tenant § 417b, pages 24-26, Annotations in 25 A.L.R. 1273, 39 A.L.R. 294, 58 A.L.R. 1411, 97 A.L.R. 220. The rule is set out as follows in Restatement of the Law, Torts § 360: 'A possessor of land, who leases a part thereof and retains in his own possession any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sub-lessee for bodily harm caused to them by a dangerous condition upon that part of the land retained in the lessor's control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.'

Appellants contend: 'The lessor is not liable * * * where the premises were used in common by several tenants, and control over them was reserved by the lessor * * * if said defect was an open and obvious one.'

Flaherty v. Nieman, 125 Iowa 546, 548, 101 N.W. 280, 281, cited by appellants, states: '* * * There is no claim that defects, * * * were concealed. In these circumstances the rule of caveat emptor applies, and it is for the lessee to make the examination necessary to determine whether the premises he hires are safe * * *. In the absence of concealed defects, he takes the risk of safe occupancy.'

However, in that case the defect was not in a part of the premises 'reserved by the landlord for use of the tenants in common'. Starr v. Sperry, 184 Iowa 540, 544, 167 N.W. 531, 532, cited by appellants, contains a similar statement but points out it does not apply to those portions of the building such as passageways, stairways, etc., retained in the possession of the landlord. 'With respect to such ways, it is well settled in this state that the landlord is under the same responsibility as the general owner of real estate who holds out an invitation to others to enter upon and use his property, and is bound to exercise reasonable care in keeping such ways ordinarily safe for the tenants and those having lawful occasion to use them.' In other words, as to those portions of the premises the tenants and such others are invitees of the landlord and the rules of law governing his duty to invitees are applicable. 52 C.J.S., Landlord and Tenant, § 417b(1) page 26, states: 'The duty of the landlord rests on the law of invitation and not on the law of landlord and tenant.'

As pointed out in 32 Am.Jur. 563, Landlord and Tenant § 688: 'This obligation of the landlord to the tenants * * * has been held not to result from the implied covenant for quiet enjoyment incident to the leases of several portions of the building, but to be of the same character as that of any other owner or possessor of real estate who invites others to use it for a particular purpose, to keep it safe for those using it within the scope of the invitation.'

This doctrine is corollary to the rule hereinbefore quoted at length from Restatement of the Law, Torts § 360. It inheres in the decisions of this court cited in the first part of this division and in like decisions of other courts. We hold it was defendants' duty to their tenants and others lawfully using this part of the premises with the consent of the tenants to exercise reasonable care to keep it in a reasonably safe condition and that such duty would apply to open and obvious as well as to hidden defects and to pre-existing defects and would not be extinguished by the absence of warranty, or misrepresentation, or concealment of the condition or the absence of an agreement to repair it.

III. Defendants assert the mangle was not defective in any way. We adopt the following language of the trial court: 'There is no dispute in the testimony about the fact that the end of the mangle in question was left unguarded, exposing a chain and sprocket wheel located two and one half to three feet off the floor, which chain and sprocket wheel were in motion when the mangle was in use. Pictures of this exposed opening showing the chain and sprocket wheel and their relative location to the floor were introduced in evidence and accordingly such evidence made a jury question as to whether the defendants were negligent in...