Wright v. Peterson

• Decision Date: 15 November 1966
• Docket Number: No. 52196,52196
• Citation: 259 Iowa 1239,146 N.W.2d 617
• Parties: Richard F. WRIGHT, Appellee, v. Clarence R. PETERSON, Appellant.
• Court: Iowa Supreme Court

Page 617

146 N.W.2d 617

259 Iowa 1239

Richard F. WRIGHT, Appellee, v. Clarence R. PETERSON, Appellant.

No. 52196.

Supreme Court of Iowa.

Nov. 15, 1966.

Rehearing Denied Jan. 10, 1967.

Dale L. Spencer, Des Moines, for appellant.

R. L. Morgan and Robert A. Wright, Des Moines, for appellee.

SNELL, Justice.

This is an action at law brought by a tenant against his landlord for injuries sustained as a result of an explosion of gas in the basement of a home rented by the tenant.

The jury returned a verdict for plaintiff and from the judgment thereon and all rulings inhering therein defendant has appealed.

Defendant is the owner of a rental 6-room residence located on a city size lot in Polk City.

On May 24, 1962 plaintiff and his wife by oral agreement rented the premises and with their children moved in the next day. There is no claim of any agreement by the landlord to repair. The house had been newly decorated. The house was equipped with a gas furnace and gas water heater located in the basement and fueled with LP (bottle) gas. Under the rental agreement the tenants were to pay for their own fuel.

There was direct testimony by a former tenant from which the jury could find that the landlord (defendant) knew that the water heater had caused trouble and a gas explosion resulting in personal injury to a previous tenant. Defendant told plaintiff nothing about previous trouble.

After moving in plaintiff contacted Mr. Glen Stanley, who was in LP gas business, to fill the gas tank and turn on the utilities. Mr. Stanley testified:

'When the Wrights moved in the company driver filled the tank and I hooked up the stove, furnace and water heater. There was no plumbing to do, it was a matter of turning them on. I turned on the gas at the tank and I went to the basement and the gas was going through the hot water heater, and when I shut it off it stopped, so I lit the furnace. Mr. Wright said he had to have hot water so I finally lit the heater for him and told him to get ahold of Mr. Peterson, that it was absolutely unsafe. I could hear the gas escaping when I first went down into the basement. I checked the hot water valve and the gas was going through the valve rather than out. I didn't want to mess with the heater. It shut on and off all right unless the pilot was out and the thermocouple was cool, then, it absolutely wouldn't shut off. When the pilot light was out the gas came on through and it would leak into the combustion chamber and the basement.

'* * *

'I went ahead and lit it and told him if he was going to use it he ought to shut it down--let it run awhile, then shut it off, but it absolutely wasn't too safe.

'* * *

'Q. * * * What did you tell Mr. Wright about the condition of this particular gas water heater? A. I told him he had better get a hold of Mr. Peterson and get a new control on it; that it wasn't very safe that way; that it was dangerous, might blow him and his wife and family all over Polk City.

'Q. You told him that it was dangerous? A. Yes, sir.

'Q. Did you tell him that there was a danger of an explosion? A. Yes, sir.

'Q. At any time while you were out there did you suggest that it not be lit and turned on? A. Before I ever lit it I told him he ought to--it should be fixed, but he said he had to have hot water, so we lit it then. * * *'

Although their recollections of this conversation varied somewhat from Mr. Stanley's testimony both plaintiff and his wife admitted hearing Mr. Stanley's warning that the heater was dangerous. From Mr. Stanley's testimony it would appear that there would be trouble only when the pilot light was out. Mrs. Wright testified:

'I heard what was said and Glen Stanley told my husband that the heater was dangerous and that it had flared up or blown up before. That the pilot light had a habit of going out. He told us to keep it turned down low. He told us to watch it and call Mr. Peterson because it was potentially dangerous. We tried to call Mr. Peterson but we couldn't get ahold of him. Mr. Stanley lighted the heater at that time.'

Mr. Wright testifed that Mr. Stanley 'lit the hot water tank and told me to get in touch with Mr. Peterson because the hot water tank was defective. * * * We did not light it the week that we were there.'

Mrs. Wright testified concerning the explosion:

'We moved into the property on May 25, 1962, a Friday. The gas was hooked up the next morning, on Saturday. The explosion occurred on May 31, 1962, a Thursday. We had not been home from before 7:30 a.m. until 2:30 or 3:00 in the middle of the afternoon on that day. We had been in Ottumwa the day before on Decoration Day and had been at the hospital with our daughter most of the week before that Thursday.

'* * *

'On the day of the explosion we came home late in the afternoon and when I went to wash my dishes the water was warm at first and then it turned cold. I told my husband that there wasn't any hot water and he said he would go and look at the heater and he said if the tank is out I'll go get Glen stanley to light it. He went out the door that opens off the living room and onto the porch and raised the trap door to the basement and then there was a loud boom and the house filled with black smoke. My family and children were in the house at the time. I went to the back porch and the smoke was there too and the windows were all blown out and my husband was on the basement floor spreadeagled out on his stomach. His face was all red and dark and his hair and eyebrows were singed and he told me not to touch him. His arms were dark colored and was peeling. There was no flame.'

Mr. Wright's testimony as to what happened was substantially the same.

Plaintiff was severely injured and his personal property in the house was damaged.

Plaintiff was 39 years old when injured in May 1962. This case was tried in March 1965.

For the problems before us further review of the evidence is unnecessary.

I. There is no claim by plaintiff that the landlord retained control of the premises or any part thereof or agreed to repair. Under such circumstances it is the general rule and the rule in Iowa that the landlord is not liable for injuries to the tenant occurring on the premises. Casey v. Valley Savings Bank, 231 Iowa 19, 24, 300 N.W. 733; Stupka v. Scheidel, 244 Iowa 442, 447, 56 N.W.2d 874; 32 Am.Jur., Landlord and Tenant, § 662; 52 C.J.S. Landlord and Tenant § 417.

'This general rule, however, is subject to an exception in regard to hidden or latent defects which existed at the time the lease was consummated and where the defect was known to the lessor (or through the exercise of reasonable care the lessor should have known of it) and he actively concealed it from the tenant or failed to call it to his attention.' 10 Drake Law Review 132; 52 C.J.S. Landlord and Tenant § 417.

Defendant-appellant concedes in his argument that there is such an exception to the general rule but contends that plaintiff neither pleaded nor proved such a defect. Plaintiff's petition included among the specifications of alleged negligence the failure to inform the plaintiff of the defective condition of the water heater after discovery of the defect. There was testimony from which the jury could find knowledge of the defect and failure to disclose on the part of defendant. Relative thereto the court instructed the jury:

'You are instructed that it is the law of this state that a landlord is not required to repair the property under lease in the absence of an express agreement to make such repairs, and the landlord is not liable for damage from defects in property, except where at the time the lease was entered into there was a defect known to the landlord and he concealed it from the tenant or failed to call it to his attention.

'As applied to this case, you are instructed that there was no duty on the part of Defendant Peterson to repair the premises after Wright took possession, since there was no express agreement to do so, and he would not be liable for damages to Plaintiff Wright unless you further find from all the evidence that the gas water heater in question was defective on the date the oral lease agreement was made, and that said defective condition was on that date known to Defendant Peterson by previous notification and he, Peterson, failed to call it to the attention of Plaintiff Wright, or concealed it from him, And under such finding your verdict would be for the Plaintiff. Further, if you find from all the evidence that Defendant Peterson had no knowledge nor had been notified of the defective gas hot water heater, then your verdict would be for the Defendant.' (Emphasis added)

The words 'under such finding your verdict would be for the plaintiff' were improper in this instruction. Such a finding would support plaintiff on the first proposition he was required to establish but standing alone would not entitle plaintiff to a verdict. An instruction immediately preceding listed four propositions on which plaintiff had the burden of proof. They were the usual instructions and listed (1) proof of negligence as alleged; (2) proximate cause; (3) freedom from contributory negligence, and (4) damage and the amount thereof. The instruction concluded as follows:

'If the Plaintiff has established each of the foregoing propositions by a preponderance of the evidence, then you will return a verdict in Plaintiff's favor.

'But if the Plaintiff has failed to establish by a preponderance of the evidence one or more of the foregoing propositions, then your verdict will be for the Defendant.'

When the instructions are viewed as a whole it appears that the error noted was an oversight. The particular words were not objected to but we cannot approve contradictory or confusing phraseology.

Except as noted the issue of breach of duty by defendant was properly submitted to the jury.

II. Appellant argues that plaintiff was contributorially negligent as a matter of law. We do not agree....