Sipprell v. Merner Motors, s. 34078

• Citation: 164 Neb. 447,82 N.W.2d 648
• Decision Date: 26 April 1957
• Docket Number: 34083,Nos. 34078,s. 34078
• Parties: Harley A. SIPPRELL, Appellee, v. MERNER MOTORS, N. Burt Merner, and Gilbert C. Merner, Appellees, Impleaded with: J. F. Bloom & Company, a corporation, Appellant. Harley A. SIPPRELL, Appellee, v. MERNER MOTORS, N. Burt Merner, and Gilbert C. Merner Appellants, Impleaded with: J. F. Bloom & Company. a corporation, Appellee.
• Court: Supreme Court of Nebraska

Page 648

82 N.W.2d 648

164 Neb. 447

Harley A. SIPPRELL, Appellee, v. MERNER MOTORS, N. Burt Merner, and Gilbert C. Merner, Appellees, Impleaded with: J. F. Bloom & Company, a corporation, Appellant.

Harley A. SIPPRELL, Appellee, v. MERNER MOTORS, N. Burt Merner, and Gilbert C. Merner Appellants, Impleaded with: J. F. Bloom & Company. a corporation, Appellee.

Nos. 34078, 34083.

Supreme Court of Nebraska.

April 26, 1957.

Syllabus by the Court

1. In the absence of an express covenant or stipulation a lessor is not bound to make repairs to leased property.

2. Subject to limited exceptions, the general rule is that guests and invitees of a tenant derive their right to enter upon leased premises through the tenant, and have the same but no greater right to proceed against the landlord for personal injuries resulting from alleged defects on the premises than the tenant has.

3. The exceptions contemplated by the foregoing statement of principle generally have no relation to conditions arising after leasing and surrender of control but only to those existing at the time of leasing.

4. Subject to specific exceptions, the lessor of land is not liable for bodily harm caused to his lessee, or others upon the demised land with the consent of the lessee or sublessee, by any dangerous condition, whether natural or artificial, which existed when the lessee took possession.

5. A lot owner in the city of Omaha is not required to repair an adjacent sidewalk until he has been notified by the city to do so, and in the absence of such notice he is not liable to pedestrians for damages for personal injuries.

6. A lot owner may be held in damages where defects in a sidewalk have been caused by his affirmative wrongdoing or wrongful use of a sidewalk.

7. In an action for negligence the burden is on the plaintiff to show that there was a negligent act or omission by the defendant and that it was the proximate cause of plaintiff's injury or a cause which proximately contributed to it.

8. The proprietor of a salesroom is not an insurer against accidents to customers, but is bound to exercise reasonable care and prudence to keep the premises, which the public is tacitly invited to use, safe for that purpose.

9. The fact that an invitee falls upon steps leading from the exit of a building to the sidewalk below does not raise any presumption of negligence on the part of its owner, and the doctrine of res ipsa loquitur does not apply.

Kennedy, Holland, DeLacy & Svoboda, William P. Mueller, Omaha, for J. F. Bloom & Co.

Robert W. Haney, Thomas J. Walsh, Omaha, for Sipprell.

Fraser, Crofoot, Wenstrand, Stryker & Marshall, Omaha, for Merner Motors.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

YEAGER, Justice.

This is an action for damages for personal injuries and medical treatment by Harley A. Sipprell, plaintiff and appellee, against Merner Motors, N. Burt Merner, Gilbert C. Merner, and J. F. Bloom & Company, a corporation, defendants and appellants. The action was tried to a jury and a verdict was returned against all defendants for $4,500. Judgment was rendered on the verdict. The defendants Merner filed a motion for new trial as did also the defendant J. F. Bloom & Company. J. F. Bloom & Company also filed a motion for judgment notwithstanding the verdict. These motions were overruled. From the judgment and the order overruling the motions separate appeals have been taken. The appeals have been consolidated. The defendants Merner will be hereinafter referred to as Merner Motors and J. F Bloom & Company will be referred to as Bloom.

As grounds of action the plaintiff by petition pleaded, to the extent necessary to set forth herein, that on September 2, 1953, Merner Motors were doing business at Twentieth Street and Ames Avenue in Omaha, Nebraska, in a building leased from Bloom; that on that date plaintiff was a customer and while leaving the premises by a regular exit he stepped from the doorway onto a step just outside from which he stepped to the sidewalk and fell whereby he sustained serious and permanent injuries; that the step was broken, worn, and irregular, and projected such a short distance from the door itself that the sudden drop to the pavement constituted a hazard to one leaving the doorway; that the plaintiff in encountering the step by reason of its condition was caused to partially lose his balance and forced to step onto a portion of the sidewalk immediately below the step which walk was broken and uneven, on account of which he completely lost his balance and fell to the sidewalk; that the step and sidewalk had remained in the condition described for a long time prior to the accident which condition was known to all of the defendants; and that the proximate cause of the accident and injuries to the plaintiff was the negligence of the defendants in failing to provide a safe means of exit from the building and in failing to warn plaintiff of the condition of the step and sidewalk.

The defendant Bloom filed a separate answer. In the answer it denied any negligence on its part. It alleged that the plaintiff was guilty of contributory negligence; that the sidewalk was owned by the city of Omaha and that this defendant was under no obligation to repair the sidewalk even if repairs were necessary, which it denied, in the absence of notice by the city; that it had never been notified to make repairs; that in no event was it chargeable with negligence on account of the condition of the step or the sidewalk; that the step was not defective; and that the step was in plain sight and that the risk, if any, was assumed by plaintiff.

Merner Motors filed a separate answer. By the answer negligence was denied and contributory negligence was charged against the plaintiff. By the answer it was alleged substantially that no repairs were necessary; that the entrance was in open and constant use and the condition of it was in plain sight; that as tenants they were not required or permitted to make repairs; that the area west of the building was a sidewalk owned by the city of Omaha; and that they had received no notice to make repairs.

The plaintiff filed a reply in which he generally denied the allegations of the answers which did not amount to admissions of the allegations of the petition. The trial was had upon the issues thus joined. The result has already been pointed out. As pointed out Bloom and Merner Motors have taken separate appeals. Each has assigned numerous errors which it is contended are grounds for reversal. The assignments of error advanced by Bloom, to the extent necessary to a determination of the appeal, will be considered first herein.

By the first four assignments of error the propriety of the rulings on the motions for directed verdict, the motion for new trial, and the motion for judgment notwithstanding the verdict were attacked.

The question presented collectively by these assignments is that of whether or not, assuming that the plaintiff had a right of action against some one, he had a right against Bloom on account of the condition of the step or condition of the sidewalk or both. Bloom insists that he did not.

One proposition substantially urged in this connection is, assuming that the step is to be regarded as on the premises occupied by Merner Motors, that no responsibility for its condition devolved upon Bloom, the lessor, unless it was shown that the dangerous condition existed at the time of leasing which condition was known at that time; that there was an obligation upon the lessor to repair and keep in repair; and that it had sufficient control for that purpose. Bloom contends that it has not been shown that these conditions or any of them did or were known to exist at the time of leasing.

The factual contention of Bloom in this respect must be accepted as true. There was no effort made to show that the condition of which plaintiff complains was in existence at the time of leasing which was in 1949.

No authorities have been cited the effect of which is to say that a lessor is under any obligation to repair conditions on leased premises which are under the exclusive control of a lessee which came into being after the lessee went into possession. The rule in this jurisdiction is to the contrary. In Bartholomew v. Skelly Oil Co., 144 Neb. 51, 12 N.W.2d 122, it was said: 'In the absence of an express covenant or stipulation a lessor is not bound to make repairs to leased property.' This was quoted with approval in Quist v. Duda, 159 Neb. 393, 67 N.W.2d 481.

This being true it must be said under the facts that the plaintiff had no right of action against Bloom on account of the alleged dangerous condition. This is so because he had no greater right that the lessee would have had, and the lessee would have had no right at all.

In Van Avery v. Platte Valley Land & Investment Co., 133 Neb. 314, 275 N.W. 288, 289, it was said: 'Subject to limited exceptions, the general rule is that guests and invitees of the tenant derive their right to enter upon the premises leased, through the tenant, and have the same but no greater right to proceed against the landlord for personal injuries resulting from alleged defects on the premises than the tenant has.'

A reading of the opinion discloses that the exceptions contemplated by this statement have no relation to conditions arising after leasing and surrender of control but only to those existing at the time of leasing.

In the same case with reference to the lessee and others it was said: 'Subject to specific exceptions, the lessor of land is not liable for bodily harm caused to his lessee, or others upon the demised land with the consent of the lessee or sublessee, by any dangerous condition, whether natural or artificial, which existed when the lessee took possession.'...