Walker v. Ellis

• Decision Date: 03 October 1955
• Docket Number: No. 18620,18620
• Citation: 129 N.E.2d 65,126 Ind.App. 353
• Parties: Mary M. WALKER, Appellant, v. Jesse ELLIS, Appellee. Clyde V. WALKER, Appellant, v. Jesse ELLIS, Appellee.
• Court: Indiana Appellate Court

Page 65

129 N.E.2d 65

126 Ind.App. 353

Mary M. WALKER, Appellant, v. Jesse ELLIS, Appellee.

Clyde V. WALKER, Appellant, v. Jesse ELLIS, Appellee.

No. 18620.

Appellate Court of Indiana, In Banc.

Oct. 3, 1955.

Ted Lockyear, Jr., Russell S. Armstrong, Evansville, for appellant.

Herman L. McCray, Nat H. Youngblood, of Youngblood, McCray & Clark, Evansville, for appellee.

KELLEY, Judge.

These two actions, involving the same questions, upon petition, were authorized to be consolidated and briefed as one appeal. The singular word, appellant, in the opinion will refer to both appellants and both actions.

This appeal comes up on an assignment of error that the court erred in sustaining appellee's demurrer to appellant's third amended complaint, hereinafter referred to as the complaint. Appellant refused to plead further after the sustaining of said demurrer and judgment against appellant followed.

Said complaint charges that the appellee, as the owner of certain premises and a building located thereon, leased the same to a named lessee for the purpose of the conducting and operation by the latter of a store for the sale of electrical and kindred merchandise to members of the general public invited to the store by the lessee by advertisements and other means.

That the front entrance to said store building was located approximately three and one-half feet from the nearest edge of the sidewalk in front of said store, and the passageway from the door of the store to the sidewalk was so built and constructed as to require a descension of approximately one foot from the door to the edge of the sidewalk. That the surface of the passageway was constructed of concrete and painted and treated with a substance 'which did, and ever since has' rendered the surface of the passageway 'slick and unsafe for the purposes and uses required thereof' which, the complaint alleges, was that of a means of entrance and exit to and from said store by members of the general public as prospective customers of the lessee.

It is further averred that appellee, at the time of the leasing of said store and premises to said lessee, 'knew and was advised' of the purpose for which they were being leased and that the premises and the building thereon were to be used by members of the general public. That all of the facts 'relating to the condition' of said building and premises 'were known to appellee or could have been ascertained by him in the exercise of reasonable care and caution.'

The appellant, the complaint alleges, on the date given, went into the store as a prospective customer, and upon leaving the same and in attempting to pass over and upon said passageway, she was caused, by reason of and as a result of said 'construction and the said conditions of said passageway and the use of said substance thereon' rendering it slick and unsafe, to slip and fall, striking the concrete with great force and violence, whereby she suffered the injuries alleged.

Appellee's demurrer rests upon the ground that the complaint does not state facts sufficient to constitute a cause of action against him. The memorandum to the demurrer contains three specifications: (1) No facts are alleged to show any legal duty owing to appellant by appellee; (2) No facts are alleged to show the violation of any legal duty owing by appellee to appellant; and (3) The facts alleged show that appellant is guilty of contributory negligence as a matter of law.

The demurrer, of course, as has often been said, admits all well pleaded facts in the complaint and all reasonable inferences therefrom. Antioch Coal Co. v. Rockey, 1907, 169 Ind. 247, 254, 255, 82 N.E. 76. Further, in considering a complaint challenged by a demurrer, all facts will be deemed stated that can be implied from the allegations made by a fair and reasonable intendment and such implied facts carry the same potency as those directly stated. Cleveland, Cincinnati, Chicago & St. Louis R. Co. v. Gillespie, 1930, 96 Ind.App. 535, 540, 173 N.E. 708.

Appellee maintains, in support of the ruling of the court, that the complaint shows that the store and building were under the absolute control of the lessee without any control by appellee over any part thereof, that it makes no allegation that appellant's injury resulted from a failure to keep the premises in repair, that the facts alleged show that the defective condition of the entrance to the building was a patent defect known to the lessee and which appellant could have seen had she looked, and that the allegations show the injury complained of was the result of a condition caused by defective construction. He further asserts that Indiana follows the common law rule that where the tenant has no redress against the landlord, those on the premises in the tenant's right are likewise barred, and that the case of Town of Kirklin v. Everman, 1940, 217 Ind. 683, 28 N.E.2d 73, 29 N.E.2d 206, is decisive of the question.

It seems clear, as appellee contends, that the complaint does not proceed upon the theory that appellee had any possession or right of control over the premises or that he failed to keep the same in repair. However, we are less inclined and more reluctant to accede to appellee's proposal that the complaint is predicated upon the charge that a defective condition caused by negligent construction occasioned the alleged injuries. We do not find from a fair reading of the complaint that it asserts appellant suffered injury because appellee had negligently constructed the leased premises.

It is not alleged in the complaint, nor do we deem it a reasonable intendment therefrom, that the manner or mode of construction of the passageway, inclining toward the entrance and declining toward the sidewalk, was, of itself, dangerous, unsafe, or the cause of appellant's fall. Under the allegations made, the combination of the descending passageway and the slick surface thereof created the condition which caused her to fall and sustain the injuries complained of. We, therefore, under such averments, cannot concede, as appellee urges, that the condition alleged to have caused appellant's injuries was a 'patent defect.'

While the complaint does not employ the ordinary pleading phraseology commonly used in charging negligence, yet, by reasonable intendment, it does aver that appellee owned the involved premises on which was located an inclined concrete passageway leading from the sidewalk to the store entrance, the surface of which passageway or walkway had been painted and treated with an unnamed substance and thereby rendered slick and unsafe for foot travel; that appellee knew that the premises were to be used by the lessee as a store and that the walkway or passageway was to be used as a means of ingress and egress by members of the general public who were customers or prospective customers of lessee; that appellee knew, or by reasonable care should have known, that said passageway was slick and unsafe for the purpose intended, and, having such knowledge, he leased the premises to the tenant. From such facts, the negligence complained of appears to be that, in the nature of the intended use, it was a negligent act for appellee to lease such premises with knowledge of the said unsafe condition, or that by reasonable care he would obtain such knowledge.

This case presents one of those situations wherein it is difficult to discern whether the basic charge in the complaint is negligence or a nuisance. As we see it, this complaint, although it does not contain the word 'nuisance', may yet be considered as stating facts which show the existence of one. To create and permit a public walkway to become slick and slippery by the use of a substance thereon making it so, differs little, in its dangerous potentiality for harm to rightful users, from a similar condition created by permitting accumulated water on a public sidewalk to remain thereon and freeze into sheets of ice. The latter was declared a nuisance in City of Muncie v. Hey, 1905, 164 Ind. 570, 74 N.E. 250, 251. No logical reason is perceived why the former should not likewise be considered in the same category.

From Coventry Leasehold Co. v. Welker, 1932, 43 Ohio App. 82, 182 N.E. 688, 689, we garner this expression: 'It may be said that these two classes of cases overlap, that is, practically all nuisances have an element of negligence in them, and a negligence case may rise to the point where the thing complained of may be a nuisance.' In Metzger v. Schultz, 1896, 16 Ind.App. 454, 43 N.E. 886, 887, 45 N.E. 619, it is stated: 'A nuisance may result from the negligent acts of commission or omission of another.'

Appellee gives little weight to and, in fact, seems wholly to ignore any matter of distinction between negligence and nuisance, and seemingly takes the position that a landlord or lessor, whether on the basis of negligence or nuisance, is under no liability to and owes no duty to a customer of his lessee injured on the premises where the latter are in the exclusive control of the tenant and the lessor is under no duty, by covenant or otherwise, to keep the premises in repair.

He claims, as stated above, that Town of Kirklin v. Everman, supra, establishes such rule in Indiana and we are bound by it. If the factual circumstances of that case are in substantial accord with those here appearing we, of course, are not at liberty to depart from the law as therein pronounced. However, should the facts apparent in the instant appeal impel the application of a different legal principle than that given birth by the situation in the Kirklin case, we must, perforce, resolve it and apply it.

In the Kirklin case it appears that the lessor leased to the lessee Town a water works plant on which was located a pit covered by boards or planks. In the pit was a gasoline engine fed by fuel lines and a leak therein permitted gasoline fumes to escape and accumulate in the pit. The plaintiff went to the plant to see ...