Stupka v. Scheidel

• Decision Date: 10 February 1953
• Docket Number: No. 48157,48157
• Citation: 244 Iowa 442,56 N.W.2d 874
• Parties: STUPKA v. SCHEIDEL et al.
• Court: Iowa Supreme Court

Page 874

56 N.W.2d 874

244 Iowa 442

STUPKA v. SCHEIDEL et al.

No. 48157.

Supreme Court of Iowa.

Feb. 10, 1953.

Bradshaw & Crawford, of Fort Dodge, for appellants.

Burnquist, Helsell & Burnquist, of Fort Dodge, for appellees.

Kelleher & Kelleher, of Fort Dodge, for appellee and cross-appellant.

GARFIELD, Justice.

Plaintiff, a professional window washer, was seriously injured in a fall from a second story window in a brick store building in Forst Dodge. He brought this action to recover for his injuries against defendants Scheidel and Hicks, lessees of the second floor, and Matina Constantine, her son and two daughters, owners of the building. Plaintiff claims his fall was caused by the giving way of a screw eye at the side of the window, his safety belt was snapped over the eye and a finger was placed inside it, the screw eye was not properly embedded in the window frame, which was decayed, and it was defendants' duty to keep the premises in safe condition.

At the close of plaintiff's evidence there was a judgment on directed verdict for defendants Scheidel and Hicks, the tenants, on the ground they were tenants of only the inside of the second floor, had nothing to do with the outside, were under no duty to inspect it or warn of hidden defects. Plaintiff has appealed from this judgment. There was a jury verdict and judgment for plaintiff for $12,500 against defendant-owners from which they have appealed. We will first consider the owners' appeal. Plaintiff's motion to dismiss this appeal, ordered submitted with the case, is overruled.

The building is two stories high and over 40 years old. The first floor was occupied by a shoe store, the second floor was leased to Scheidel and Hicks for what is called a club. John and Steve Constantine purchased the building about 1930. John died in 1940 and his widow, son and two daughters inherited his interest. In June, 1949, Steve deeded his interest to John's widow and heirs, defendant-owners. Scheidel and Hicks occupied the second floor under oral leases with Steve Constantine from 1938 until after plaintiff fell July 23, 1949.

Over two years before plaintiff fell Scheidel and Hicks engaged him to wash the second story windows at least once a month. He had his own materials and equipment and the tenants paid him by the job. On the day he fell plaintiff had just finished washing the windows on the outside and was about to climb through a window to the inside when a screw eye at the side of the window pulled out, causing him to fall about 18 feet to the sidewalk.

The last window plaintiff washed was 20 inches wide and between 5 and 6 feet high. It was at the west side of a window 8 or 9 feet wide. About 20 inches above the ledge of the smaller window on each side of the sash, screwed into the wood jamb or casing, was a screw eye intended as a safety device for window washers and perhaps painters or other workmen. While plaintiff was washing the window he stood on the window ledge which extended out from the sash nearly 6 inches, one snap on his safety belt was hooked over the screw eye on the west side of the window and the middle finger of his left hand was placed inside the eye. When the screw eye pulled out this finger was inside it. Plaintiff did not fasten his safety belt to the screw eye on the east side of the window.

There is substantial evidence the wood in which the screw eye was embedded needed paint badly and was decayed, causing the screw eye to be insecure. The screw was 1/4 inch in diameter and tapered to a point. The shank of the screw was heavily rusted near the eye. The lower threaded part not rusted was only about 5/8 inch long. The hole left in the surface of the wood when the screw pulled out was 1/2 to 5/8 inch in diameter. It was 3/4 to one inch deep. Rotten wood adhered to the screw when it pulled out.

I. Defendant-owners argue they were entitled to a directed verdict on the ground plaintiff, as to them, was a bare licensee to whom they owed no duty which was violated. They say the second story of the building was in control of the tenants to whom the owners were under no duty to keep it in repair and they were under no greater duty to plaintiff than to the tenants. Plaintiff contends, however, defendant-owners retained control of the outside of the building, he was an invitee of the tenants and an implied invitee of the owners who violated their duty toward him by negligently allowing a condition to exist which imperiled his safety. These conflicting claims present the principal questions for our decision.

It is true generally that the owner or occupant of realty is under no duty to look out for the safety of a bare licensee who comes on the premises without invitation express or implied. However the one who has control of realty owes a duty to those who come upon it by express or implied invitation to exercise ordinary care to keep it in condition which will not imperil their safety. Keeran v. Spurgeon Mercantile Co., 194 Iowa 1240, 191 N.W. 99, 27 A.L.R. 579, and citations; Mann v. Des Moines R. Co., 232 Iowa 1049, 1062-1070, 7 N.W.2d 45, 53-57; Sulhoff v. Everett, 235 Iowa 396, 16 N.W.2d 737.

As a general rule an owner who has leased a building to another without any agreement to repair is not liable to the tenant, or to one who has entered the premises on the tenant's invitation, for personal injuries sustained by reason of their unsafe condition. However this rule does not apply where the owner retains control, or the owner and tenant have joint control, over the premises or the part thereof where the injury occurs.

This exception to the rule is frequently invoked where an injury is caused by the condition of a hall, passageway, stairway or elevator over which the owner, alone or jointly with the tenant, has control. Such an owner is liable to one who has been so injured after coming upon the premises by invitation from the tenant. There are other exceptions to the general rule which need not be considered here. See Burner v. Higman & Skinner Co., 127 Iowa 580, 103 N.W. 802; Casey v. Valley Sav. Bank, 231 Iowa 19, 23, 300 N.W. 733, 735; Barrett v. Stoneburg, 238 Iowa 1068, 1074, 29 N.W.2d 420, 423.

The above views find support in Burner v. Higman & Skinner Co., supra, cited by both sides; Noyes v. Des Moines Club, 178 Iowa 815, 160 N.W. 215; Dillehay v. Minor, 188 Iowa 37, 175 N.W. 838, 11 A.L.R. 106; Hull v. Bishop-Stoddard Cafeteria, 238 Iowa 650, 674-679, 26 N.W.2d 429, 443-446, and citations; Primus v. Bellevue Apartments, 241 Iowa 1055, 1060, 44 N.W.2d 347, 350, 25 A.L.R.2d 565, 572; Swenson v. Slawik, Minn., 53 N.W.2d 107, 110; Annotations, 25 A.L.R.2d 364; 97 A.L.R. 220, and earlier annotations there cited; 32 Am.Jur., Landlord and Tenant, section 688; 52 C.J.S., Landlord and Tenant, § 417b, pages 24-26 ('Liability in such cases does not depend primarily on the portion of the building or premises in which the defective condition occurs but on the fact that the landlord has retained control.')

Applicable here is Restatement, Torts, section 360, approved in Primus v. Bellevue Apartments, at page 1060 of 241 Iowa, at page 350 of 44 N.W.2d, and Hull v. Bishop-Stoddard Cafeteria, at pages 678, 679 of 238 Iowa at page 445 of 26 N.W.2d: '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 sublessee 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.'

This from Primus v. Bellevue Apartments, supra, at pages 1059, 1060 of 241 Iowa, at page 350 of 44 N.W.2d, applies to the principal decisions, such as Flaherty v. Nieman, 125 Iowa 546, 101 N.W. 280, and Starr v. Sperry, 184 Iowa 540, 167 N.W. 531, defendant-owners cite here: '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.' Both decisions last cited clearly recognize the duty of an owner to keep in reasonably safe condition portions of a building over which he retains control.

There is little doubt plaintiff was using that part of the building from which he fell by express invitation of the tenants. Under the above authorities he was also an implied invitee of defendant-owners provided they retained control, alone or jointly with the tenants, of that part of the building. While perhaps owners most frequently retain control of halls, stairways and the like they may of course keep control of the outside of the building. See Restatement, Torts, section 360, comment c.

There is substantial evidence here defendant-owners retained control of the outside of the second story of the building either themselves or jointly with Scheidel and Hicks. Defendant Matina Constantine testifies in substance the tenants took care of the inside of the upper floor but 'anything on the outside' was the owners' business.

The jury could properly find that by the exercise of reasonable care defendant-owners could have discovered the unsafe condition of the screw eye that pulled out and could have made the condition safe. There is evidence tending to show this screw eye was placed in this same wooden casing for use of window washers when the building was built over 40 years before plaintiff fell. The owners had apparently done nothing to discover the defective condition or remedy it.

The natural tendency of wood to decay when exposed to the weather and badly in need of paint is commonly known. It is generally known too that decayed wood furnishes insecure anchorage for a screw of such description as...