Nole v. Sixty-Five O Four, Inc.

HANSON, J. pro tem. This is an appeal by plaintiff, a married woman, from an adverse judgment predicated on the verdict of the jury in an action to recover damages for personal injuries received when a chair, upon which plaintiff was seating herself, collapsed in an apartment owned by defendant and occupied by appellant, her husband and children. The first question we are necessarily called upon to decide is whether the facts proved by plaintiff-appellant disclosed a legal liability upon which a verdict if it had been rendered in her favor could stand. If such a verdict would have been permitted to stand then the second question is whether the court erred in instructing the jury on the theory that the status of the parties was that of landlord and tenant, instead of invitor and invitee, and in refusing to give certain instructions requested by plaintiff-appellant based on the latter theory. The jury returned a verdict as has been stated for defendant-respondent.

[633]The evidence, viewed most favorably to appellant, is readily stated. About two weeks prior to November 22, 1948, the date of the accident appellant, her husband and their three minor children went to the registration desk of the Wilcox Hotel and there the husband engaged for the family a furnished apartment consisting of a living room with an in-a-door bed, a bedroom and bath, and a kitchen upon a weekly basis and rate. The weekly rate included chambermaid and janitor service. After a stay of about two weeks and on the morning of November 22, 1948, the appellant weighing 126 pounds had occasion to move an upholstered occasional armchair from a corner in the living room to a desk. When she sat down upon it the left front chair leg gave way precipitating her to the carpeted floor causing her to sustain certain alleged injuries resulting in the suit in question. Testimony in behalf of the plaintiff was to the effect that after the accident the chair ■ was examined and it was disclosed that the left leg thereof had “a break all of the way through the top, a split.”

Appellant testified that in her two-week stay in the hotel she had paid little or no attention to the chair and that a casual inspection of the leg of the chair would not have disclosed its condition. There was no evidence to indicate that the split in the chair was not of recent origin; no evidence that the split was patent rather than latent; in fact, the evidence was that it was not patent and would not have been visible upon a casual inspection; no evidence that the defendant could by any reasonable inspection have discovered the defect. There was evidence that the defendant had no actual knowledge of the defect.