298 F. 693 | 8th Cir. | 1924
Robert A. Fraser, plaintiff in error, hereinafter referred to as plaintiff, brought an action against John Kruger and Ira Kruger, defendants in error, hereinafter referred to as defendants, to recover damages for personal injuries. The defendants were the owners of a building located in Aberdeen, S. D, On the 1st day of July, 1920, they leased it to the Booker Fruit Company (hereinafter called the Fruit Company). While the term of the lease commenced July 1, 1920, and ran for a period of five years, it was understood ánd agreed at the time the lease was executed that possession of the building would not be surrendered to the Fruit Company until about August 1, 1920. The Fruit Company began to move in a few days before August 1, 1920. The defendants had some machinery stored on the second floor. They moved the last of it out on August 4, 1920. The Fruit Company; with the consent of the defendants, was remodeling the building to suit its purposes. The plaintiff was cm
There was a safety device on the elevator, so arranged that when the cable slackened it released a spring, which caused two sharp dogs to protrude and engage the guides on the side walls of the elevator shaft, and thus prevent the elevator from descending. Aft^i- the accident one Resseguie was called to repair the elevator, and discovered that two blocks, 2x4x6 inches, had been nailed into the safety device, so that when the cable slackened the spring was not released and the dogs did not engage the guides. There was evidence that the dogs had been catching on the side walls of the elevator shaft and preventing the elevator from working properly, and it was the opinion of some of the witnesses that the blocks had been put in the safety device to stop this interference.
Plaintiff and other employees of the Fruit Company used the elevator a. great many times. In the alteration of the building the Fruit Company removed the stairway in the front of the building and was going to install another one in the rear, so that for a period of 10 days immediately before the accident the elevator was the only means of ingress to and egress from the second floor.
By the terms of the lease the owners and lessors were expressly relieved from making any restoration or repair to the elevator.
The only witnesses called who had been in and about the premises prior to the accident were the two defendants, who were called under the South Dakota statute for cross-examination, and the plaintiff and Weger. The defendants denied any knowledge of any defect in the safety device and of the placing therein of the wooden blocks. Weger testified:
“I am not able to state of my own knowledge whether there was anything "done by way of repairing or fixing or alteration on that elevator while Í was there before Mr. Fraser was hurt.’'
Plaintiff testified that he made no “inspections, examinations or tests,’3 and did not look over the elevator in any way before he was hurt. Resseguie testified that the blocks holding the safety device from functioning were plainly observable and that any one would notice them.
At the close of plaintiff’s evidence showing substantially the foregoing facts, the lower court directed a verdict for the defendants. The correctness of that ruling is the sole question presented here.
In the recent case of Shew v. Hartnett, 121 Wash. 1, 208 Pac. 60, where the employee of a tenant was injured due to a defective elevator, the court said:
“ ‘In the absence of covenant on the part of the landlord to repair, no active duty is imposed on him to disclose apparent defects which are equally within the knowledge of the • tenant, or which the latter might ascertain by due diligence, the rule of caveat emptor applying in such cases with 'full force; and in such cases the landlord is not liable for subsequent injuries resulting from such defects.’ * * *
“ ‘No contractual relation having existed between the appellant and the respondent, and appellant having entered upon the premises only as the servant of the lessee, his right to recover against -the respondent is in no manner superior to that of his employer.’ * * *
“ ‘A painstaking examination of the authorities cited and many more in- * duces the conviction that the exception to the rule of nonliability of the landlord for injuries arising from defects existing at the time the lease was made, in the absence of warranty or express agreement upon his part to repair, can soundly be extended only to injuries resulting from a failure of the landlord to disclose those obscure defects, not known to the tenant and not discoverable by a reasonablv cm-cnü examination on his part, but actually known at the time to the landlord.’ ”
Counsel for plaintiff relies principally on two cases, Hines v. Willcox, 96 Tenn. 148, 33 S. W. 914, 34 L. R. A. 824, 832, 54 Am. St. Rep. 823 ; Id., 100 Tenn. 538, 46 S. W. 297, 41 L. R. A. 278, 66 Am. St. Rep. 770, and Bailey v. Kelly, 86 Kan. 911, 122 Pac. 1027, 39 L. R. A. (N. S.) 378; Id., 93 Kan. 723, 145 Pac 556, L. R. A. 1916D, 1220.
Hines v. Willcox, supra, laid down the doctrine that the landlord is liable for personal injuries suffered by the tenant on account of a latent defect on the leased premises, not only where he has actual knowledge of the defect, but also where by the exercise of reasonable care, he might have had such knowledge.
Counsel for plaintiff have cited the first decision in Bailey v. Kelly, supra. It is apparent they overlooked, inadvertently no doubt, the fact that this case came before the Kansas court on a second appeal. In the last decision the. court said:
*698 “This ease was before (he eourf- '>n the occasion of a former appeal, Bailey v. Kelly, 86 Kan. 911, 122 Pac. 1027, 39 L. R. A. (N. S.) 378. .The action was commenced against a landlord to recover damages resulting from the death of his tenant’s servant, who fell into a defectively covered cistern on the leased premises. The cistern was in a shed in the rear of the kitchen of a building used as a restaurant. The defect in the covering of the cistern existed at the time the premises were leased, was open to view, and the character of the covering was observed by the tenant when he took possession. The lease was without warranty and without covenant to repair, on the landlord’s part. At the. first trial the court sustained a demurrer to the plaintiff’s evidence on the ground that the landlord rested under no liability. This court held otherwise, as indicated in paragraph 1 of the syllabus of the first opinion: ‘Where a nuisance dangerous to life’is created by the owner on his premises, or through his gross negligence is suffered to remain there, he cannot, by leasing the property to another, avoid his own liability to any person who is rightfully upon the premises, and who, without fault, is injured by reason of such nuisance; and this liability extends to a servant of the tenant, notwithstanding the tenant, by reason of his own fault or neglect or knowledge of the danger, could not have maintained an action against the owner for any injury suffered by himself.’ * * *
“A majority of the members of the court are convinced that the former decision was wrong. That the former decision was substantially unsupported by authority and was rendered against the settled law of this country is clear. * * *
“The tenant may or may not invite third persons, servants, patrons, guests, and others upon the premises, as he pleases, hut the landlord extends, and can extend, no such invitation, either expressly or by implication. He cannot himself enter upon the tenant’s possession, even to repair, unless the right be reserved or permission obtained, much less grant licenses to others. The result is the negligence theory of liability, suggested in the syllabus of the former opinion, breaks down for lack of any legal duty on the landlord’s part to sustain it.
“The principle upon which the lessor of premises is held liable to third persons for nuisances existing at the time the tenancy was created is this: The landlord having possession and control of his land, or the right to possess and control it, owes the public, who are suffering or must suffer from the nuisance, the duty to abate it, and must respond in damages for a breach of the duty. The duty and the liability are not satisfied by the simple act of leasing the premises and continue until the nuisance is abated. * * *
“When the condition of property is such that it does not impair thé public safety, the landlord owes no duty to the public or to any member of the public to change the condition. When he comes to deal with a specific individual as a prospective tenant, he owes that individual no duty, except not to entrap him by concealing facts which ordinary inspection would not reveal, and he owes no other individual any duty at all. The landlord may in perfect good conscience offer his property, such as it is, to a tenant who takes it, such as it is, on satisfactory terms, just as the landlord and- tenant did in this case. This is true, although buildings may be in tumbledown condition, excavations may be unguarded, or tbe premises may be otherwise uninhabitable or in unsafe condition for use. The only exception is that of property devoted to public use such as wharves, railroads, elevators, public halls, and the like. Negotiations having been fairly concluded, and possession having been given to the tenant, no obligation on the part of the landlord to safeguard or to repair remains unfulfilled. After that ho obligation to repair arises during the tenancy, unless the landlord has contracted to do so.”
We may assume the elevator with the safety device nailed back as it was at the time of the injury constituted a nuisance. It was a private elevator. There was no invitation^ express or implied, to the public to use it. It was in the possession and under the control of a tenant bj’ virtue of a lease, which not only did not require the defendants to repair, but expressly relieved them from that burden; The plaintiff was
. Therefore the lower court properly directed a verdict, and the judgment is affirmed.