Dorswitt v. Wilson

DOOLING, J. pro tem.

This is an appeal from a judgment of nonsuit entered at the close of plaintiffs’ case. Plaintiff rented a furnished apartment from defendant on August 21, 1935. At that time a portion of the plaster on the ceiling of the living room was cracked and looked like it was going to fall. Defendant had been notified of this condition by the manager of the apartment house but plaintiff at the time of renting was not informed of it. About August 23 plaintiff noticed the crack in the ceiling. On August 28 the crack seemed to have gotten larger and a little corner of the crack was sagging. On August 29 plaintiff notified the defendant and he came to the apartment and inspected the ceiling. Plaintiff said: “I will show it to you Mr. Wilson before anything happens; my daughter didn’t see you yesterday to tell you about it so I was kind of worried about it. ... I thought I would let you know in case anything happened. . . . Mr. Wilson, this looks very bad; I wouldn’t want anything to happen, we are just here on a vacation, it would be a terrible thing. ’ ’ Defendant said, ‘ ‘ this looks terribly bad, ’ ’ and promised to send a man up the next day to fix it.. The ceiling was not repaired on August 30. Plaintiff and her daughter slept in a roll-away bed which could be placed anywhere in the apartment. Instead of moving the bed to another portion of the living room it was placed under the cracked part of the ceiling on the night of August 30, and early in the morning of August 31 the plaster from the ceiling fell on plaintiff as she lay in bed.

Plaintiff relies upon the rule of law that where a tenant is injured by a latent or'hidden defect known to the landlord at the time of letting, but concealed by him from the tenant, the landlord is liable.

(Stanley

v.

Lander,

3 Cal. App. (2d) 284 [39 P. (2d) 225].) In seeking to apply it to this case plaintiff is straining the rule beyond its reason. It is not the dangerous condition which renders the landlord liable but its concealment, and the concealment is no longer a factor in the injury to the tenant once the dangerous condition is discovered

[625]

by him. The conversation of August 29 above quoted makes it clear that plaintiff was as fully aware of the danger as defendant. Passing the question of her contributory negligence, which might possibly be a question of fact, the plaintiff was injured by a condition of which she was as cognizant as the defendant and concealment was no part of its proximate cause. In the language of some of the eases she must be held to have assumed the risk of a dangerous condition fully known to her.