Ward v. Hinkleman

• Decision Date: 08 March 1905
• Citation: 79 P. 956,37 Wash. 375
• Court: Washington Supreme Court
• Parties: WARD v. HINKLEMAN et ux.

79 P. 956

37 Wash. 375

WARD v. HINKLEMAN et ux.

Supreme Court of Washington

March 8, 1905

Appeal from Superior Court, King County; George E. Morris, Judge.

Action by Jane Ward against A. Hinkleman and wife. From a judgment in favor of plaintiff, defendants appeal. Reversed.

Benson & Hall, for appellants.

Joseph M. Glasgow and Crary & Ogden, for respondent.

RUDKIN J.

On the 26th day of June, 1902, and for about eight months prior thereto, the defendants were the owners of certain real property on Seventh street, in the city of Seattle. On this property were situate five tenement houses, which were rented to different tenants from month to month. For eight months prior to the above date one of these houses was rented to a Mrs. Zufeldt. The latter house was constructed on piling about eight feet back from the abutting sidewalk. There was a porch along the front of the house extending about five feet toward the street, leaving a space of three feet between the porch and the sidewalk. This intervening space was covered with boards one inch in thickness, attached to the porch at one end, and to the sidewalk on the other. A daughter of the plaintiff occupied a room or rooms in the Zufeldt house. On the above date the plaintiff called to visit her daughter, and, as she passed over this intervening space between the sidewalk and the porch, the boards gave way, precipitating her to the ground some seven or eight feet below. As a result of this fall, the plaintiff was seriously injured. There was no written lease of the house in question, so far as the record discloses. Mrs. Zufeldt testified that she simply rented the house, and that the lots were used in common by all the tenants. There was no agreement for repairs between Mrs. Zufeldt and the defendants, but it appeared in evidence that the defendant A Hinkleman was about the demised premises from time to time, collecting rent, viewing the premises, and making such repairs as he deemed necessary. This action was brought against the defendants, as owners of the property, to recover damages for the injuries caused the plaintiff by falling through the approach to the porch. Plaintiff had judgment below, and the defendants appeal.

The complaint alleged the ownership of the property by the appellants, and that the appellants had the management and control thereof at the time of the injury complained of; that the flooring of the porch was rotten and defective; that the porch and the approach thereto were defective in construction, rendering them dangerous and unsafe to walk upon; and that the appellants had notice of their defective and dangerous condition, or, by the exercise of reasonable care and prudence, could and would have had such notice. The answer admitted the ownership of the property but denied that the appellants had the management or control thereof, and alleged affirmatively that at the time of the injury complained of, and for about eight months prior thereto, the house and premises were in the possession of Mrs. Zufeldt as a tenant from month to month; that during said time said tenant had the exclusive possession and control of the premises; and that there was no contract or agreement between the appellants and their said tenant respecting repairs. The answer further pleaded contributory negligence. The affirmative defenses in the answer were denied, and upon these issues the case was tried. The tenancy of Mrs. Zufeldt was admitted at the trial, and while she and other witnesses testified that she only rented the house, and that the other portions of the property were used in common by all the tenants, we entertain no doubt that the lease extended to and included the porch and the approaches thereto; that the house, the porch, and its approaches were under the exclusive control and dominion of the tenant; and that she was primarily liable for the repairs thereof. The liability of the landlord to third persons for injuries from defective repair of demised premises is thus stated in volume 18, p. 238, Am. & Eng. Enc. of Law (2d Ed.): 'As a general rule, the landlord is not liable for injuries to third persons during the tenancy from the defective repair of the demised premises; and where the landlord has created no nuisance, and is guilty of no willful wrong of fraud or culpable negligence, he incurs no liability for any injury suffered by any person occupying or going upon the premises during the term of the demise at the invitation or license of the tenant, such as members of the family, employés, guests, or customers of the tenant. This rule has been held to extend to the demise of a building used for public purposes. Where, however, at the time of the letting, the premises are in a dangerous or unsafe condition for the avowed purpose for which they are let, the landlord is liable for injuries to the person or goods of a third person lawfully upon the premises, arising from such unsafe condition; and this is especially true where the building is let for a public entertainment. The reason for the rule holding the landlord liable to strangers for injuries from the dangerous condition of such premises at the time of the letting is that the landlord, by letting the premises in such condition, authorizes the continuance of such condition, and is therefore guilty of misfeasance.' Again, at page 240: 'Where at the time of letting the premises are in a proper state of repair, and they are permitted by the tenant to get into a condition dangerous to the public or to third persons, the landlord is not, as a general rule, liable to third persons for injuries caused therefrom during the...