Williamson v. Wellman

• Decision Date: 19 March 1931
• Citation: 156 Va. 417
• Court: Virginia Supreme Court
• Parties: W. W. WILLIAMSON v. J. W. WELLMAN.

Page 417

156 Va. 417

W. W. WILLIAMSON v. J. W. WELLMAN.

Supreme Court of Virginia, Richmond.

March 19, 1931.

Present, Compbell, Holt, Epes, Hudgins and Browning, JJ.

1. LANDLORD AND TENANT — Duty of Landlord where Apartments are let to Different Tenants as to Reserved Halls, Stairways and Approaches — Injury to Invitee of Tenant Caused by Fall of Platform Leading to Tenant's Apartment — Case at Bar. — The defendant in the instant case owned a two-story house. The second floor of this house was divided into two separate flats and rented to separate tenants. The only means of ingress and egress to and from these apartments was by an outside stairway, at the top of which was an uncovered platform from which doors opened into each flat. The occupants of the two flats were several and not joint tenants of defendant. Plaintiff, an invitee of one of the tenants, was injured when this platform fell when he was on it. As the platform was clearly designed to be used in common by the tenants, neither of the tenants could have exclusive control of it. Therefore neither of the tenants would have any responsibility for keeping the platform in repair or in proper condition for the use of the other.

Held: That the possession and control of the stairway and platform remained in the landlord.

2. LANDLORD AND TENANT — Flats with Common Entrance — Invitees — Case at Bar. — The defendant in the instant case owned a two-story house. The second floor of this house was divided into two separate flats and rented to separate tenants. The only means of ingress and egress to and from these apartments was by an outside stairway, at the top of which was an uncovered platform from which doors opened into each flat. As the landlord let the flat for profit, in order to enjoy this profit it was necessary that there be means of ingress and egress to the flats. The landlord elected to make one approach for both flats, rather than a separate approach for each.

Held: That this election of the landlord was an invitation for all who had business or social relations with the tenants of the flats to come and pass over this stairway and platform, and it was the duty of the landlord to use reasonable care to see that the stairway and platform were reasonably safe.

3. NEGLIGENCE — Invitees — Duty of Owner of Property to Invitees. — The owner or occupant of land who, by invitation, express or implied, induces or leads others to come upon his premises, for any lawful purpose, is liable in damages to such persons — they using due care — for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to him and not to them, and was negligently suffered to exist, without timely notice to the public, or to those who were likely to act upon such invitation.

4. LANDLORD AND TENANT — Landlord Renting Parts of His Building to Various Tenants — Landlord Reserving Halls and Approaches — Duty of Landlord to Keep Reserved Portions in Safe Condition. — A landlord who rents out parts of a building to various tenants reserving the halls, stairways, and other approaches for the common use of his tennants, is under an implied duty to use reasonable care to keep such places in a reasonably safe condition, and is liable for injuries to persons lawfully using those places for failure to perform that duty.

5. LANDLORD AND TENANT — Invitees — Invitee Injured by Fall of Platform from which Ingress and Egress were had to Two Flats Rented to Different Tenants — Doctrine of Res Ipsa Loquitur — Harmless Error — Case at Bar. — The instant case was an action by an invitee against the landlord of two flats rented to different tenants. Plaintiff was lawfully on the premises using the approach to the flats when the platform on which the doors of the flats opened fell with him. It was the duty of the landlord to use ordinary care to maintain the approaches in a reasonably safe condition. At the request of the plaintiff an instruction was given applying the doctrine of res ipsa loquitur.

Held: That this was an error. But as the evidence showed that the defendant was guilty of negligence in failing to exercise ordinary care in maintaining the common approach in a reasonably safe condition, and that he knew or should have known of the rotten condition of the support to the platform in time to make necessary repairs, the giving of the instruction was harmless error.

6. LANDLORD AND TENANT — Platform Falling with Invitee of Tenant — Knowledge of Landlord of Condition of Platform — Case at Bar. — In the instant case a platform forming the approach to a flat fell with an invitee of a tenant of the flat and injured him. It is a matter of common knowledge that timber exposed to the weather and so placed that water will collect in cracks where it is fastened together will rapidly decay. The defendant knew the plan on which the platform was constructed; his agent in collecting the rents saw this approach every week. Yet the only examination that he stated he made was what he could see as he walked up the steps. It follows that in the exercise of ordinary care the defendant would have obtained knowledge of the condition of the timbers before they became so rotten that they gave way.

7. NEGLIGENCE — Injury to Invitee — Contributory Negligence of Plaintiff — Platform Falling with Plaintiff — Case at Bar. — The instant case was an action by an invitee against a property owner for injuries sustained from the fall of a platform. Defendant contended that plaintiff was guilty of contributory negligence. Plaintiff and his companion walked in an ordinary manner up the steps leading to the platform which gave ingress and egress to a flat, assuming that the approaches were in good condition. The evidence did not show that the defect in the platform was obvious. Plaintiff had a right to assume that defendant had performed his duty. Defendant's agent had visited the house on the day of the accident and saw nothing wrong with the approach.

Held: That there was not sufficient evidence to prove contributory negligence.

8. STATUTES — Inconsistent Provisions — Latest Expression of Legislative Intent — Acts 1924, Page 478 — Case at Bar. — Where there is an inconsistent and irreconcilable provision in a statute it should be construed so as to give effect to the latest expression of the legislative intent. Thus, the new provision in the 1924 amendment to the workmen's compensation act (Acts 1924, page 478) shows an evident intent on the part of the legislature to include within its terms a negligent third party.

9. WORKMEN'S COMPENSATION ACT — Section 1887(12) of the Code of 1930 — Action Against Third Person — Where Employee Has Received Compensation — Case at Bar. — The amendment to the workmen's compensation act in 1924 (Acts 1924, page 478) bars an injured employee, or his personal representative, from proceeding against a third person liable for the injury after he has accepted an award under the workmen's compensation act. It would be unjust to allow an employer or an insurance carrier to recover from a third party more than such employer or carrier is liable to pay the injured employee, or to permit such employer or carrier to collect from such third party and deny the injured employee the right to compel payment of any surplus so received. It follows that the practical construction of Acts 1924 (Acts 1924, page 478) is to hold that where an indorsement on the writ, as in the instant case, stated that the action was for the benefit of the plaintiff and his employer as their respective interests might be shown, the indorsement being made with the consent of the employer, that recovery will be limited to the amount of compensation which the employer has paid, or is liable to pay, to the injured employee, plus reasonable expenses and attorney's fee.

Error to a judgment of the Corporation Court of the city of Danville in an action of trespass on the case. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

Meade & Meade, for the plaintiff in error.

Carter & Talbott and Wyndham R. Meredith, for the defendant in error.

HUDGINS, J., delivered the opinion of the court.

This is an action by J. W. Wellman against W. W. Williamson to recover damages for injuries received when a platform on which Wellman was standing collapsed. The verdict was for the plaintiff below and was approved by the trial court. There are numerous errors assigned. A brief statement of the facts is essential to an intelligent understanding of the legal points involved. For convenience, the parties will be referred to in the position they occupied in the court below.

The defendant owned a two-story house in the city of Danville. The second floor was divided into two separate flats consisting of two rooms each, and rented to separate tenants. The only means of ingress and egress to and from these apartments was by an outside stairway, at the top of which was an uncovered platform from which doors opened into each flat. Neither the stairway nor the platform was divided by railings.

The plaintiff was a collector for an industrial insurance company and used these approaches every week for the purpose of collecting premiums from some of the occupants of these flats. On one of these business calls while he and an inspector of the industrial insurance company were standing on the platform it broke loose from the house and precipitated both parties to the ground below, severely injuring the plaintiff. This action against the owner followed.

The defendant contends that the plaintiff did not prove that the possession and control of the approaches was in the landlord; that the plaintiff was not the invitee of the defendant; that there was no privity of estate or contract between him and the plaintiff and hence he owed the plaintiff no duty except that due a licensee; that even if the plaintiff stood in the shoes of the tenant, the defendant owed him only the duty...