Lee v. Giosso

TAYLOR, J.

is an appeal from a judgment of non-suit dismissing appellant’s complaint for damages for the wrongful death of his wife who died on November 13, 1961, as the result of injuries sustained when the door of a wall bed collapsed. Appellant contends that he has a cause of action against his landlord, respondent Giosso, and that the court erred in denying his request for a jury trial.

Viewing the evidence in the light most favorable to appellant, as we must on appeal from a nonsuit

(Aguirre

v.

City of Los

Angeles, 46 Cal.2d 841, 844 [299 P.2d 862]), the following facts appear: In January of 1956, appellant Walter Lee and his wife rented a furnished apartment at 725 Van Ness Avenue in San Francisco. The pertinent portions of the written lease provided that the tenants: 1) agreed that the apartment and furnishings were all in good condition and were to be maintained at the tenants’ expense; 2) expressly assumed the responsibility for keeping the apartment in good condition; 3) waived any and all rights to make repairs at the expense of the landlord and waived the provisions of section 1942 of the Civil Code; 4) absolved the owner and manager of the apartment from any and all claims for damages to person or property from any cause whatever.

In 1957, respondent acquired the apartment building at 725 Van Ness Avenue and became the Lees’ landlord. In June or July of 1961, the door of the wall bed in the dining room began to scrape on the floor and Mrs. Lee found it so difficult to manipulate that she left the bed down at all times thereafter. She mentioned the matter to respondent on several occasions, the last time being on October 20, 1961, when he came to collect the rent. She told him that she would like to have the door fixed because it was scraping the floor and she had trouble putting the bed up, and further explained that she and her husband were expecting company for Thanksgiving dinner and she did not want the bed in the dining room at that time. Respondent orally agreed to fix the bed door but failed to do so. After the fatal accident, respondent entered the Lee apartment and found a wrench missing from the door’s pivotal mechanism.

In this state, a landlord is not liable to the tenant for injuries due to a defective condition or faulty construction

[248]