Gately v. Campbell

COOPER, C. Action for damages for personal injuries. Verdict and judgment for defendants. Motion for new trial and order denying same. Appeal from judgment and order. The plaintiff rented rooms in a tenement-house at 8 “Parks Place” in the city and county of San Francisco, in January, 1893. It does not clearly appear who was the owner of the premises so leased to plaintiff, but the arrangements were made with one Mrs. Falls, to whom plaintiff paid the rent. On the 8th of September, 1893, plaintiff claims to have been severely injured by a fall caused by the floor or platform giving way under her feet. In the first count of the third amended complaint it is alleged that the injury was caused by reason of the breaking away of the floor, which was not originally safely constructed and was never constructed so as to be safe for human occupation, which facts were well known to defendants, and were never known or discovered by the plaintiff until she was so injured.

In the second count of said amended complaint it is alleged that some two or three weeks prior to September 8th, one day while passing over the floor plaintiff thought she felt the floor “shake a little,” and for fear the same might give way she notified the defendants thereof and requested them to examine the same and strengthen it if they found it necessary. Both counts of the said amended complaint are sworn to by plaintiff. There is no testimony in the record' tending to support the second count, but, on the contrary, the plaintiff testified that there was nothing during her tenancy that would indicate that there was danger in living there or in passing out and walking over the floor from day to day. That the floor looked all right. Counsel for plaintiff in his brief says that the contention of the plaintiff is “that the platform and its supports were faultily and unsafely constructed and that the latter were rotten and decayed [522]at the inception of the tenancy, a fact known to defendants but unknown to and concealed from plaintiff.” He again says in his brief: “Ho evidence was introduced to prove the dilapidations to have occurred subsequent to the beginning of the tenancy.” Therefore it is apparent that there was no evidence to prove the second count of the amended complaint, and it was abandoned by plaintiff. We will now examine the first count. There is no allegation in the complaint of any covenant in the lease as to repairs, nor of any fraudulent representation or concealment of the condition of the leased premises. The controlling question left in this case is whether or not the landlord, in the absence of fraud, concealment, or covenant in the lease, is liable to the tenant for an injury suffered by him during his occupancy by reason of the defective condition or faulty construction of the leased premises. At the common law the lessor is not liable for such injury. (Keates v. Earl of Cadogan, 10 Com. B. 591; Howard v. Doolittle, 3 Duer, 464; Taylor on Landlord and Tenant, secs. 175 a, 382.) And, this court has often laid down the same rule. (Brewster v. De Fremery, 33 Cal. 341; Van Every v. Ogg, 59 Cal. 565; Sieber v. Blanc, 76 Cal. 173; Willson v. Treadwell, 81 Cal. 58; Daley v. Quick, 99 Cal. 181.) Counsel for plaintiff in his brief seems to concede the rule, but claims that the premises were defective and unsafe at the time they were leased to the plaintiff, which facts were known to defendants but unknown to plaintiff. There is no testimony in this record to support such claim, but if there were such testimony the question was fairly left to the jury under the instructions of the court. It is claimed that it is the duty of a landlord leasing a building for the occupation of human beings to put it in a condition for such occupation. Citing Civil Code, section 1941, which reads as follows: “The lessor of a building intended for the occupation of human beings must, in the absence of an agreement to the contrary, put it into a condition fit for such occupation, and repair all subsequent dilapidations thereof which render it untenantable, except such as are mentioned in section 1929.”