Goldman v. House

WARD, J.

This is an appeal from a judgment against defendants John Lee House and Marie House, husband and wife, in a personal injury action based upon wilful misconduct. The complaint alleges that plaintiffs were in possession, on a month-to-month tenancy, of a certain upper flat in San Francisco and had been tenants thereof for many years prior to an accident which occurred in February, 1947. Mildred Goldman, wife of coplaintiff Jacob Goldman, fell down a stairway and sustained certain injuries, and it is claimed that the injuries resulted from defendants’ action in turning off the electric current, which left the flat and stairway in “complete darkness.”

The complaint alleges “That on or about July 12, 1946, the defendants purchased and acquired the premises within which the said upper flat is contained, and immediately thereafter the said defendants commenced to harass and annoy the plaintiffs for the purpose of coercing plaintiffs to vacate said upper flat and remove therefrom, and among other things the said defendants wilfully and maliciously shut off the water supply and the electric current from said upper flat for various periods of time, without notice to plaintiffs and without cause; . . . ”

The issue of shutting off the water supply is pertinent only as tending to prove a plan of harassment and annoyance instituted by defendants against plaintiffs. The primary

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issue was settled by agreement of the respective litigants during the trial, namely, that the dispute was whether defendants wilfully and maliciously shut off the electric current and for that reason Mildred Goldman fell down the darkened stairway and sustained injuries.

The evidence shows that the building consisted of a basement apartment, the first floor apartment in which the defendants, Mr. and Mrs. House, had lived since their purchase of the building in July of 1946, and two apartments above, in the top one of which the Goldmans had resided for several years. A separate enclosed stairway led to each of the upper apartments. The stairway to the Goldman flat had approximately 30 steps with two landings. There was a door with a clear glass pane at the first floor entrance of the stairway and a frosted glass window at the top landing. There was an overhead light fixture at the lower landing inside the door, which was operated by push button switches located at both the bottom and the top of the stairway. Gaslight fixtures were located at various places in the flat, though there was conflicting testimony as to whether there were any on the stairway. On the evening of February 17, 1947, there were no electric lights in the flat. Mrs. Goldman had cooked supper on the gas stove and was burning candles for illumination, which she had been obliged to do for some months during various intervals. On returning home that evening Mr. Goldman found the keyhole in the entrance door at the bottom of the stairway stuffed with broom straw. He knocked on the door and “hollered” and Mrs. Goldman started down the unlighted stairs to let him in. She fell and injured her right arm and side. She testified that she wore low-heeled shoes and that before starting to descend she tried the light switch unsuccessfully, so held onto the stair rail. At the time of the trial Mrs. Goldman was 75 years of age and her husband “past 75.”