Turner v. Kent

• Decision Date: 30 January 1932
• Docket Number: 30257.
• Citation: 7 P.2d 513,134 Kan. 574
• Parties: TURNER v. KENT et al.
• Court: Kansas Supreme Court

7 P.2d 513

134 Kan. 574

TURNER v. KENT et al.

No. 30257.

Supreme Court of Kansas

January 30, 1932

Syllabus by the Court.

Injured person may sue one or all persons contributing to injury whether wrongdoing is concurrent or consists of independent acts of each wrongdoer.

Owner of store building is liable for known conditions existing at time of leasing rendering it unsafe for lessee's customers.

Petition held to state cause of action against tenants operating store and owner for injuries to customer from known defective condition of premises.

1. Whether the wrongdoing of two or more parties, which causes the injury of a third person, is concurrent or consists of separate and independent acts, the injured person may at his option institute and maintain an action against one or all of those contributing to the injury.

2. Where a building is leased for a public purpose as a grocery store and meat market to which the public generally is to be invited, and conditions exist at the time of leasing which make it unsafe for the purpose intended and such matters are known to the owner or landlord at the time of making the lease, the owner or landlord is liable for injuries thereby occasioned to third parties of the invited public.

3. The amended petition in this case considered, and held to state facts sufficient to constitute a cause of action against the tenants and the owner of the building.

Appeal from District Court, Cherokee County; John W. Hamilton Judge.

Action by Lena Turner against James Kent, A. W. Karbe, and others. From the judgment, defendant last named and a certain other defendant appeal, and plaintiff cross-appeals.

Affirmed as to defendants appealing; and reversed and remanded with instructions as to cross-appeal.

C. B Skidmore, of Columbus, for appellants.

C. E Rumery, of Columbus, and E. B. Morgan, of Galena, for appellee and cross-appellant Lena Turner.

Grant Waggoner, of Baxter Springs, for appellees James Kent, Mark Fehrenback, and A. Hedrick.

HUTCHISON J.

This is an action by a customer in a grocery store and meat market, to recover from the owner of the building and the tenants maintaining the store, damages for an injury alleged to have been received by her by stepping into a hole in the concrete floor in front of a table on which goods were displayed for sale. The trial court sustained a demurrer to the petition filed by the owner and overruled that of the tenants or storekeepers. Appeals were taken from both rulings, and the sufficiency of the petition as to the defendants in both these capacities is the main question here for review.

Most that is urged in the appeal of the tenants or storekeepers is concerning the error of the court in sustaining the demurrer of the owner and in so doing leaving the tenants alone responsible when the petition shows a joint liability, if any, and an obligation and duty of the owner in the first instance prior in time and responsibility to that, if any, of the tenants. This will not relieve the tenants from responding even alone to the claim of the plaintiff, for whether the wrongdoing of two or more defendants is concurrent or by separate and independent acts, they are jointly and severally liable although one of them may eventually be liable to the other to the full extent of his liability to the plaintiff.

"Where two or more parties, by their concurrent wrongdoing, cause injury to a third person, they are jointly and severally liable, and the injured party may, at his option, institute an action and recover against one or all of those contributing to the injury." Kansas City v. Slangstrom, 53 Kan. 431, syl. par. 2, 36 P. 706, 707.

"If separate and independent acts of wrongdoers combine to produce a single injury, each is responsible for the result, although the wrong of one alone might not have produced the result." Gooch v. Gooch, 108 Kan. 416, syl. par. 3, 195 P. 874. See, also, Farmers' Grain Co. v. Atchison, T. & S. F. Ry. Co., 120 Kan. 21, 245 P. 734.

So the allegations of the petition seem to us to state facts sufficient to constitute a cause of action against the tenants, either alone or in conjunction with the owner of the building, and their demurrer to the petition was rightly overruled.

The trial court evidently sustained the demurrer of the owner on the strength of the decision in the case of Bailey v. Kelly, 93 Kan. 723, 145 P. 556, L.R.A. 1916D, 1220, as involving substantially the same or similar state of facts as in this case. There appears to us to be many points of distinction between the two cases, which come within those mentioned in the opinion in that case. In the first place, the defect here alleged was in the floor near the middle of the storeroom and in front of a table where goods were displayed for sale, and not in the rear of the kitchen as was the defective cover to the cistern where no one was expected to go except the tenant and his employees. In the second place, the injured party here was a customer of the store, a part of the general public invited to this place of business; whereas, in the Bailey Case, supra, the injured one was an employee of the tenant, who stood in the same relation to the owner as did the tenant and no higher, as does a guest or any of the invited public. 36 C. J. 229. It was said in the Bailey Case, supra:

"The fact that the front room of the building was open to such portion of the public as desired to patronize the restaurant has no relevancy to the subject under consideration. The situation at the rear of the building was precisely the same as that of any private family employing servants to perform various household functions." Page 728 of 93 Kan., 145 P. 556, 558.

"The principle upon which the lessor of premises is held liable to third persons for nuisances existing at the time the tenancy was created is this: The landlord having possession and control of his land, or the right to

possess and control it, owes the public, who are suffering or must suffer from the nuisance, the duty to abate it, and must respond in damages for a breach of the duty. The duty and the liability are not satisfied by the simple act of leasing the premises, and continue until the nuisance is abated." Page 730 of 93 Kan., 145 P. 556, 558.

"When the condition of property is such that it does not impair the public safety, the landlord owes no duty to the public or to any member of the public to change the condition." Page 731 of 93 Kan., 145 P. 556, 559.

In the amended petition in the case...