Rankin v. Elizabeth Kountze Real Estate Co.

162 N.W. 531, 101 Neb. 174, 1917 Neb. LEXIS 75

• Court: Nebraska Supreme Court
• Decided: April 14, 1917
• Docket: No. 18846
• Status: Published

Opinions

Dean, J.

This case is here on rehearing. The former opinion is reported in 100 Neb. 69, and in which a lengthy statement is made. There are a number of points discussed in the briefs upon which the evidence is conflicting. The verdict of the jury settled these questions of fact. Among them are whether- the plaintiff’s foot was injured, as she contended, by a puncture from a concealed nail in a threshold, or whether, as the testimony for defendant tended to prove, it was injured by a nail in the heel of her shoe. At all events, the immediate cause of her injury was blood poisoning caused by an infection. The verdict settled the question whether the injury by the nail was the proximate cause of the infection or whether the wound was infected afterward from another source. Two questions remain to be considered, whether, conceding the facts established as the plaintiff claims, the landlord is liable as a matter of law for injuries resulting from a hidden defect in a threshold1 of which he has no knowledge, and whether the evidence supports a verdict based upon a promise, made before the plaintiff took possession, to put the premises in repair and keep them in repair.

■ The evidence as to the condition of the threshold is about as follows: The plaintiff’s brother, a street car conductor, who lived with her, says that they finished moving upstairs late in the afternoon, that about 9 o’clock at night his sister told him she had stepped on something; that he first looked in the hall, but found nothing, he then looked at the threshold. He testifies: “I could see nothing by observation on the top of it. I examined it. From the appearance on the top you could not tell that there was anything wrong, but on bearing my weight on it I found there was a spring in the threshold, and on moving my hand along over there to see whether there was anything on the threshold, thinking there might be something wrong in a case like that, I found that there was a nail protruding from the threshold, which was a piece of board nailed over the threshold. Q. How did you discover that would show above the board? A. By weighting down with my knee and feeling with my hand. The weight of my hand by bearing down with the hand would not spring down enough. Q. And the weight of your knee? A. With the weight of my body on the knee, and that on the threshold, Avould make the nail protrude through. Q. How far would it protrude through? A. With my left it was possibly a quarter of an inch.” The next morning he examined the threshold again. He was unable to pull the nail with a hammer, but, by raising the piece of wood that had been nailed down, he pulled the nail by the use of pliers. He Avas then asked: “Q. Could you see anything wrong Avitli it by looking at it from a distance in the room. A. No, sir. Q. You could not see the concave under it? A. No. sir.”

The plaintiff testified that she first kneAV the board would spring down when she stepped upon it, and, on being asked when sire first discovered the nail, answered: “We noticed it that evening first, and then we examined it more thoroughly the next day. Q. Before or after the injury? A. After the injury. Q. Before that, did you notice anything wrong with that threshold? A. No.” Mrs. MeElhinney testified: “Q. And stepping on the board or threshold there, state what you could see, if anything, concerning the nail you mention. A. Nothing at all except the threshold.” Another witness for plaintiff who lived across the hall testified that he noticed the board about two weeks before the plaintiff moved in, and that the board had a tendency to spring when it was stepped on. On cross-examination he testified: “Q. When you stepped on it was yaur attention attracted to any loose nails in the board? A. No, sir.”

Norlen, the man with whom the plaintiff changed apartments, testified that he nailed the board on the threshold in October, 1909, that he moved out of the apartment the same day that Mrs. Rankin moved in. He then testified: “Q. Was there anything to call your attention to the nail in any way? A. No. Q. Did you and your children use that doorway? A. Yes, we did. Q. Had you or your family heard of any nail in that threshold? A. No. Q. I will ask you Mr. Norlen whether at or about the time .you left there that threshold was in a condition so as to move up and down if anybody stepped on it? A. I could not say. I never noticed it. I did not pay any attention to it. Q. Was there anything about the appearance of the threshold or its condition to challenge your attention or call your attention to the fact that it was movable and moving up and down? A. No.”

This is the substance of the testimony in favor of the plaintiff with respect to the condition of the threshold. For defense, those in charge of the building testified they never heard of any defect in the threshold until this suit was begun, two years after the alleged accident, and that Norlen had no authority to make repairs. It is undisputed that the defect in the threshold wras not obvious and open to observation, and that it had not been seen by any one until after Mrs. Rankin was hurt. Plaintiff conclusively established the fact that the defect was latent and hidden. She produced no evidence that the lessor or his agents had any knowledge or notice of the defect, and their testimony is -undisputed that they neither knew nor had any reason to suspect such a condition.

Can a landlord be held liable as a matter of law for an injury resulting from such a latent defect of which neither he nor his agents had any knowledge? This question is settled in this state by the case of Davis v. Manning, 98 Neb. 707, wherein the opinion examines the authorities and lays down the rule: “The rule of caveat emptor applies to leases of real estate, and, in- the absence of warranty, deceit, or fraud on the part of the lessor, the lessee cannot recover for personal injuries received through latent defects therein, of which the lessor had no knowledge at the time of making the lease, and which were as patent to the lessee as to the lessor.” The condition of the case brings it clearly within the rule in Davis v. Manning, and there can be no recovery on this theory.

Upon re-argument and re-examination of the case, we are satisfied that the agreement to make repairs, even if it was as the plaintiff states it, would not include such defect, if it existed as described by plaintiff and her witnesses. The testimony, not only of the witnesses called by defendant, but as well those called by plaintiff, establish the hidden nature of the defect. The testimony discloses that it comes within the generally accepted and recognized definition of the expression “latent defect” as used by law-writers. On this point the law seems to be well settled. Bennett v. Sullivan, 100 Me. 118, announces a rule that is generally accepted: “The owner of private property owes to a prospective lessee no duty to exercise ordinary care to ascertain and apprise him of unknown defects in the property to be leased where such prospective lessee has equal opportunity to ascertain the defects.” Walsh v. Schmidt, 34 L. R. A. n. s. 798 (206 Mass. 405) holds: “A statement by a property owner to a prospective tenant that he has fixed the house all right, that it is fit for anybody to live in, does not constitute an express warranty that there are no latent defects which may cause injury to the tenant.” See, also, Cate v. Blodgett, 70 N. H. 316; Morgan v. Sheppard, 158 Ala. 403; Rowell v. Schneider, 24 App. D. C. 532; Shinkle, Wilson & Kreis Co. v. Birney & Seymour, 68 Ohio St. 328.

Our former judgment is vacated, and the judgment of the district court is reversed, and the action is dismissed.

Reversed.