Smith v. Wolsiefer

• Decision Date: 08 June 1916
• Citation: 89 S.E. 115
• Parties: SMITH. v. WOLSIEFER.
• Court: Virginia Supreme Court

89 S.E. 115

(119 Va. 247)

SMITH.

v.WOLSIEFER.

Supreme Court of Appeals of Virginia.

June 8, 1916.

Error to Law and Equity Court of City of Richmond.

Action by James H. Smith against Adam Wolsiefer. To review a judgment for defendant, plaintiff brings error. Affirmed.

C. R. Sands and Ordway Puller, both of Richmond, for plaintiff in error.

Lamb & Lamb, of Richmond, for defendant in error.

KEITH, P. The declaration in this case was filed by James H. Smith against Adam Wolsiefer, and states the following case: That the defendant, on the 18th of May, 1914, leased to C. C. Smith and M. C. Smith a certain dwelling house in the city of Richmond, at a rental of $12 a month, which was paid in advance; that prior to the signing of the lease, and before taking possession of the premises, and as a condition precedent to renting the same, it was agreed by the defendant that certain necessary repairs to the house, and among them the fixing and repair of the back steps, would be made by the defendant immediately upon the signing of the lease, and it was upon this understanding and agreement that the lease was signed and the rent paid. The plaintiff then avers that prior to the renting of the house by the defendant to C. C. and M. C. Smith the back steps of the house were in a very dilapidated and dangerous condition, and at the time of said rental the said defendant knew, permitted, and suffered the back steps of said house to become and be out of repair and in an unsafe, dilapidated and dangerous condition, and in that condition to remain, so that the steps were liable to become broken, owing to decay of the planks and the cracks in the top plank and in one of the props underneath said plank, and owing to insufficient props thereunder, and to fall down to the ground at any moment and injure person's who might happen to walk or step upon them, of all of which the said plaintiff and C. C. Smith and M. C. Smith were ignorant, but of which the defendant had knowledge. And the plaintiff further alleges that on the 25th of May, 1914, while he was lawfully upon the premises, he stepped upon the said back steps to said dwelling house, and without any fault on his part the back steps broke and fell to the ground, and he, without any warning thereof, was precipitated and thrown and cast to the ground, and his right hip broken and dislocated, and his body, legs, arms, and head bruised and injured; that, in consequence of said injuries, he has suffered and is now suffering great pain in his hip, body, legs, and head, and has incurred large doctor's bills and other expenses, amounting in the aggregate to $400. The second count, in addition to the averments contained in the first count, charges the unsafe and dangerous condition of the steps, and that the defendant failed to disclose the defects to the plaintiff or to C C. Smith and M. C. Smith, but concealed and suppressed all knowledge of the condition of the premises, and especially the defects in the steps aforesaid from the plaintiff and C. C. Smith and M. C. Smith, and failed to give them notice of said defects at and before the lease was signed, and from thence to the time of the injury the defendant suffered and permitted the said steps to be and remain in an unsafe, dilapidated, and dangerous condition.

To this declaration there was a demurrer, and thereupon the defendant, Wolsiefer, craved oyer of the lease; whereupon the trial court, as appears from its order, took "the paper writing under seal of which oyer is craved as a part of the record, and directs it to be so filed, and considered as part of the declaration upon consideration of the demurrer." And thereupon the court sustained the demurrer to the declaration and each count thereof, and entered judgment for the defendant; and the case is before us upon a writ of error.

The proceeding in this case by which the defendant craved oyer of the lease is unusual.

"As a general rule, the right to crave oyer of papers mentioned in a pleading applies only to specialties and letters of probate and administration, not to other writings, and only applies to a deed when the party pleading relies upon the direct and intrinsic operation of the deed. Langhorne v. Richmond R. Co., 91 Va. 369 ." Grubbs v. National Life, etc., Co., 94 Va. 589, 27 S. E. 464.

But this case has peculiar features. All the parties are sui juris and appear to have consented for the trial court to consider the deed of lease of the 18th of May, 1914, as a part of the declaration. The court by its order directs that the lease shall be deemed a part of the declaration, and upon the declaration with the lease introduced into it the court passed upon the demurrer and entered its judgment; so that we are of opinion that what was done in the trial court is to be deemed a waiver by the plaintiff in error of any objection on his part, and is tobe treated as an amendment made to the declaration by consent of all parties. We shall therefore proceed to consider the demurrer upon the record as presented by the order of the nisi prius court.

Support is given to adopting this course by the opinion of this court in King v. N. & W. Ry. Co., 99 Va. 625, 39 S. E. 701, where the court, dealing with a demurrer to the declaration, said:

"This court has held that the bill of particulars required by section 3218 of the Code is no part of the declaration, and a demurrer will not lie for defects in such bill. Campbell Co. v. Angus Co., 91 Va. 438 . Under this ruling it...