Van Avery v. Platte Val. Land & Inv. Co.

• Decision Date: 01 October 1937
• Docket Number: 30026.
• Parties: VAN AVERY v. PLATTE VALLEY LAND & INVESTMENT CO.
• Court: Nebraska Supreme Court

275 N.W. 288

133 Neb. 314

VAN AVERY v. PLATTE VALLEY LAND & INVESTMENT CO.

No. 30026.

Supreme Court of Nebraska.

October 1, 1937

Syllabus by the Court.

1. The validity of a lease of real estate, and the bona fides of the relation of landlord and tenant created thereby, are in no manner affected by the provisions thereof merely determining that the amount of the rental shall be fixed at a definite percentage of the amount of income received by the tenant from a garage business carried on by him in the premises demised .

2. " The rule of caveat emptor applies to leases of real estate, wherein the control passes to the lessee, and, in the absence of fraud, deceit or concealment, the duty devolves upon the lessee to examine the premises with respect to suitability for his business and with respect to safety." Lowe v. Payne, 107 Neb. 378, 186 N.W 320.

3. " In the absence of fraud, deceit or concealment, a lessor is not liable in damages to the lessee for defects in a building which are plainly discernible, when liability therefor is not reserved in the lease." Lowe v. Payne supra.

4. 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.

5. Record examined, and held wholly insufficient to invoke the jurisdiction of this court on the subject of alleged liability of the landlord, based upon the existence and breach of a covenant binding upon him, to repair the locus in quo.

6. 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.

7. Where, however, premises are leased for a public or semi-public purpose, and the lessor knows at the time of leasing that a dangerous condition exists thereon which renders the premises unsafe for the public use intended, the lessor is liable for injuries sustained by patrons of such lessee who, upon invitation express or implied, are admitted to such demised premises to make use of the same for the particular purpose for which it was leased.

8. The owner's liability for the condition of his premises, leased for a public or semi-public purpose, is only coextensive with the limits of the invitation, express or implied, which may be deemed to be extended to the patrons thereof. To entitle a person to recover for injuries as an invitee, he must show that at the time of the injury he was using the premises demised for the purpose contemplated by such invitation. A person may not be deemed an invitee when using a part of the premises to which the invitation does not extend, and if he goes beyond the bounds of such invitation, he acts at his peril.

9. Evidence in the record examined, and held to establish affirmatively that plaintiff was not, under the facts and circumstances in this case, an invitee to that portion of the leased premises where his injuries were received.

Appeal from District Court, Douglas County; Sears, Judge.

Action by James C. Van Avery against the Platte Valley Land & Investment Company. Judgment for plaintiff, and defendant appeals.

Reversed, and action dismissed.

Brogan, Ellick, Shoemaker & Fitzgerald and Robert B. Hamer, all of Omaha, for appellant.

Wear, Boland & Nye, of Omaha, for appellee.

Heard before GOOD, EBERLY, DAY, and CARTER, JJ., and HASTINGS and RINE, District Judges.

PER CURIAM.

This is an action at law to recover for personal injuries sustained by plaintiff, Van Avery, on March 1, 1935, as the result of falling into a " pit" or " stairway" located in the interior of a building owned by defendant for some eight or nine years, and, by a lease in writing, leased to one Herman Monico, who then was, and for more than two years prior had been, in exclusive possession thereof. Plaintiff made the defendant landlord the sole defendant. The building leased was occupied by the tenant as a public garage, primarily for the day storage of automobiles. A trial of the issues involved to a jury resulted in a verdict and judgment for plaintiff, and, from the order of the trial court overruling its motion for a new trial, the defendant appeals.

The record establishes the following:

Plaintiff called at the garage conducted by Herman Monico on the 1st day of March, 1935, about 4:30 p. m. This is a brick building situated at the southwest corner of the intersection of Seventeenth and Jackson streets in the city of Omaha, Nebraska, and is constructed on the north 80 feet of lots 1 and 2, in block 5, of Kountze & Ruth Addition to Omaha. The large entrance for receiving automobiles is in the north wall. The building, the evidence indicates, extends east to west. A brick partition wall extending from the north to the south wall divided the building into two rooms, at least, the exact dimensions of which are not disclosed by the record, but the larger of which, extending eastward from this partition to the west wall of the building, constituted the garage proper. The evidence discloses no openings admitting light in the west wall. Some ten feet east of the southwest corner of the room a brick partition connecting with, and built at right angles with, the south wall of the garage, extending from floor to ceiling of the room, projects into it for a distance of some ten or twelve feet. The floor is composed of cinders. Resting on its edge on the floor, extending from the base of the projecting wall west to the west wall, at the time of the accident, a 2 by 12 plank was fastened. The irregularities of the floor at this point were such that the distance from the top of the black cinder floor to the top of this plank as it was in place varied from about four inches to nine or ten inches. The three walls were on the west, south and east sides of what is referred to in the evidence as the " pit," which in fact was the open flight of stairs leading to the engine room containing the heating plant of the building. The plank furnished the protection on the fourth side. The evidence is without contradiction that the space within the garage along the west wall immediately northward was wholly devoted to the storage of automobiles. Here the automobiles were ordinarily backed to the west wall and, parallel to each other, extended eastward into the garage. North of and immediately adjacent to this plank was the stall or place in which the automobile of witness Ralph C. Phelps had been regularly since 1933 daily placed and kept. This automobile when in its usual and proper position stood with its rear close to the west wall and its front extending just beyond the projecting brick wall already mentioned. In this situation it formed, together with the other three brick walls, a practical barrier to the so-called " pit" or " stairway." In the three walls last mentioned as constituting the surroundings on three sides of the stairway, there were no windows or openings for the admission of light to the space thus inclosed. While electric fixtures were provided for lighting this part of the premises, they were not lighted at the time of the accident, and the exact situa tion of the cars at that moment, in the southwest corner of the garage and along the west wall thereof, is a matter of disputed evidence. The inclosing wall and absence of artificial lights created within the space thus inclosed, according to plaintiff's evidence, such a pall of darkness in the southwest corner of the garage, especially in the space included within the surrounding walls referred to, that said " pit" was dark, obscured and concealed. But it must be admitted that there was nothing to indicate that this portion of the garage was devoted to any purpose whatever save for the placing and storage of automobiles. Immediately east of the east wall inclosing the pit was a space illuminated by a window or opening in the south wall of the garage.

After entering the large north door of the garage, plaintiff proceeded at once to the " office." This office was a construction about six foot square, with windows on two sides and a door, supplied with a desk, chairs, and stove for heat, located about the center of the garage and devoted to the purpose its name implies. Herman Monico, Sr., the proprietor of the garage, was absent, but Herman Monico, Jr. a youth of 17 and a son of the proprietor, " who worked in the garage," was sitting therein. Without in any manner announcing the purpose of his visit, plaintiff inquired of young Monico where his father, Herman, was. The son replied, " He is out in the back room," and at the same time pointed toward the west wall of the garage and in the general direction of the north door in the west wall, which was the only door in sight in that wall from the position that young man then occupied. This door was located from 75 to 100 feet from the front of the building. Plaintiff testifies that on receiving this information, without in any manner announcing his business or purpose, he left the little office and walked straight west " to the large door" in the west wall, or the door covered with canvas, " pushed the canvas to one side and called Herman" and " tried to get hold of Herman." Looking into the dark southwest corner of the building, the plaintiff discovered a closed door in the west wall near its junction with the south wall of the garage. He turned southward and walked toward it. Plaintiff testifies that he did not look down as he passed along; that he did not see the 2 by 12 plank...