Opinion
12-14-1954
Arthur W. STOWE, Plaintiff and Appellant, v. FRITZIE HOTELS, Inc., a corporation, John One and Two, Jane One, John Doe and Richard Roe, copartners doing business under the fictitious firm name and style of St. Francis Hotel and Apartments, a copartnership, Fritzie Hotels, Inc., doing business under the fictitious name and style of St. Francis Hotel and Apartments, St. Francis Hotel and Apartments, Black Company, a corporation, and John Doe Weinberg, Defendants, * Fritzie Hotels, Inc., a Corporation, Respondent. Civ. 20468.
Harold D. Kraft, Los Angeles, and Robert F. Reynolds, San Francisco, for appellant. Frank W. Woodhead, Robert E. Morrow and Henry F. Walker, Los Angeles, for respondent.
Arthur W. STOWE, Plaintiff and Appellant,
v.
FRITZIE HOTELS, Inc., a corporation, John One and Two, Jane One, John Doe and Richard Roe, copartners doing business under the fictitious firm name and style of St. Francis Hotel and Apartments, a copartnership, Fritzie Hotels, Inc., doing business under the fictitious name and style of St. Francis Hotel and Apartments, St. Francis Hotel and Apartments, Black Company, a corporation, and John Doe Weinberg, Defendants,
Fritzie Hotels, Inc., a Corporation, Respondent.
Dec. 14, 1954.
Hearing Granted Feb. 10, 1955.
Harold D. Kraft, Los Angeles, and Robert F. Reynolds, San Francisco, for appellant.
Frank W. Woodhead, Robert E. Morrow and Henry F. Walker, Los Angeles, for respondent.
MOORE, Presiding Justice.
Action for $76,868.80 damages against a lessor for bodily injuries allegedly sustained when a standard lamp in appellant's apartment fell on him as he slept. A general demurrer to each of his three counts was sustained. He declined to amend, whereupon a judgment of dismissal was entered 34 days after the order sustaining the demurrer.
Count I sounding in negligence alleges substantially:
(Paragraph III) Defendant was owner and manager of a multiple unit hotel and furnished apartment premises located in Los Angeles, which it operated for profit. It leased unit 425 and its furniture, including a standard lamp, to appellant. During his tenancy and at the time of the injury, defendant owned and retained and exercised full and exclusive control and management of all of said unit and its lamp. The latter 'had at its top as its shade a large glass bowl' which weighed about ten pounds and was much larger and heavier than the metalic base which was at the foot of a five-foot standard.
(IV and V) September 1, 1952, plaintiff leased the furnished unit with maid service for the use of himself and wife at a rental of $90 per month for their dwelling. When injured, plaintiff was asleep in his apartment as tenant, business guest and invitee of defendant.
(VI) Defendant so negligently managed the lamp that it was caused to, and did, fall and topple over so the bowl was caused to collide with plaintiff's right leg.
(VII) That as the proximate result thereof, plaintiff suffered a great laceration of said leg to the rear of the knee, cuts, contusions and abrasions near the knee and great pain and suffering; that hospitalization and the services of a physician and surgeon were required to care for said injuries at a reasonable charge of $793.80 and plaintiff was reasonably caused to and did expend for ambulance service, medicines and bandages $55; future medical services will be required.
Time lost from his work as a salesman caused plaintiff a loss of earnings in the sum of $1,020 and he will lose earnings in the future, all to plaintiff's damage in the aggregate sum of $76,868.80.
Count II
Plaintiff adopts the allegations of paragraphs I, II, III, IV, and V of the first count and proceeds to allege specific negligence and breaches of express and implied statutory warranties of fitness.
(II) During said tenancy and at its inception, defendant held out and orally represented and warranted to plaintiff that said lamp was in a safe and useable condition and fit for the purpose for which it was intended, to wit, a lamp in the proximity of plaintiff's bed where defendant maintained it, and plaintiff believed said facts so represented and warranted and relied on them.
(III) At the time of the lamp's fall, it was in an unsafe and dangerous condition in that it was top-heavy, loosely put together and liable to topple over without cause beyond its own make-up, plus the force of gravity and the normal vibrations of the premises and was unfit for human use. Said facts were unknown to plaintiff. Said unsafe, dangerous and unfit conditions were latent, not known or ascertainable by plaintiff. Defendant at all times knew or could have known by the exercise of reasonable care, while plaintiff did not and could not know that the lamp was always in an unsafe, dangerous and unfit condition, but let and hired it to plaintiff for use as defendant's tenant and allowed plaintiff to occupy unit 425 with said lamp therein.
(IV) As a proximate result of the lamp's dangerous and unfit condition, it fell over on plaintiff while he and his wife slept in a bed about five feet from the lamp, which fall caused the injuries, detriments and damages described in paragraph VII of the first count.
Count III
Plaintiff adopts paragraphs I, II, III, IV and V of Count I and paragraphs I, III, IV and V of Count II.
As so constituted, appellant describes his action in Count III in his brief thus: 'Specific Negligence and breach of implied-statutory warranty of fitness.'
No Valid Cause of Action Alleged
Appellant leased the unit June 1, 1951. The lamp fell upon him September 1, 1952. He does not allege any ophthalmic infirmity in himself; he alleges neither active nor passive fraud on the part of respondent. Since it is a general rule that in the absence of fraud, concealment or covenant, a landlord is not liable to a tenant on account of property leased, Forrester v. Hoover Hotel & Investment Company, 87 Cal.App.2d 226, 232, 196 P.2d 825, then if plaintiff has a cause of action falling within an exception to such rule, he must plead the exception under which he claims, Wilson v. Ray, 100 Cal.App.2d 299, 303, 223 P.2d 313, and the facts he intends to prove.
During fifteen months appellant occupied the unit as his home, the lamp was not only within the range of his vision but by its very nature appellant must have contacted it daily, whereby its location, its disposition to lean and its inclination to topple must have become known to appellant. There is no liability of a lessor for that which is visible to the naked eye or which is discoverable by the tenant in the exercise of ordinary care. Powell v. Stivers, 108 Cal.App.2d 72, 73, 238 P.2d 34. The lessor is not an insurer of the safety of his houses and tenements. Ayres v. Wright, 103 Cal.App. 610, 616, 284 P. 1077. Nor is he under duty to examine for latent defects. Daulton v. Williams, 81 Cal.App.2d 70, 75, 183 P.2d 325; Ellis v. McNeese, 109 Cal.App. 667, 672, 293 P. 854; Toner v. Meussdorffer, 123 Cal. 462, 465, 56 P. 39. In truth, appellant makes no allegation that he had no knowledge of the top-heavy condition of the lamp, no declaration that such fact could have been discovered by defendant by the exercise of ordinary care. There is no basis for recovery against a landlord for defects or dangerous conditions unless it be alleged that he had a superior knowledge thereof. See Monroe v. East Bay Rental Service, 111 Cal.App.2d 574, 578, 245 P.2d 9. At no point does the complaint allege that respondent knew any more about the heavy bowl of the standard lamp and its likelihood of falling than could have been learned by appellant through the exercise of reasonable care to learn the nature of his environment. In Goldstein v. Healy, 187 Cal. 206, 201 P. 462, cited by appellant, the defendant had constructed a railing on the side of his platform out of decomposed wood. Defendant had 'full information'; operated a hotel and the plaintiff was his invitee.
In the instant complaint there is no allegation from which it can be ascertained what respondent did or omitted to do that was negligence; no allegation that respondent knew the lamp was dangerous and that appellant was ignorant of such danger. The bare statement, in the presence of a special demurrer, that defendant negligently maintained the standard lamp is an insufficient allegation. Baisley v. Henry, 55 Cal.App. 760, 764, 204 P. 399. When a demurrer is presented, seeking greater certainty and particularity, a complaint alleging negligence in general terms of a landlord toward his tenant is deficient. Abos v. Martyn, 31 Cal.App.2d 705, 707, 88 P.2d 797.
The complaint contains no allegation that plaintiff gave defendant notice of any vice in the lamp or in its use as a lamp or in the position it occupied in unit 425. Such notice is authorized by section 1955 of the Civil Code and is designed to prevent injuries by a defective movable by enabling the letter of such personalty to repair or remove it. Moreover, had such notice been served on defendant, plaintiff might have had the lamp removed at defendant's expense. Civ.Code, sec. 1957. Is it reasonable that a judgment for injuries to appellant should be rendered against respondent when the condition of the lamp about which appellant complains was actually in his possession and had been for fifteen months without his utterance of a word of criticism? The very presence of the last cited statutes argue mightily in the negative and especially so since at common law, the lessor of movables was not liable for injuries caused thereby. In Forrester v. Hoover Hotel and Investment Company, surpa, a judgment against the hotel was reversed because the evidence disclosed no knowledge on the part of the landlord of any defect in the wall bed which had occasioned plaintiff's injuries. 'To hold the landlord liable upon warranty for any injury resulting from a latent defect in the equipment or furnishings leased with a furnished apartment would be to make the landlord virtually an insurer of the safety of the tenant.' Id., 87 Cal.App.2d 231, 232, 196 P.2d 825, 828.
Another ambiguity or uncertainty is found in Count I. If one horn of the dilemma is taken it would be impossible to attach liability to respondent. First, it is alleged that prior to the accident appellant leased unit 425 with the lamp as one of the furnishings. Next, he alleges defendant owned and exclusively controlled the unit and the lamp at all times. Finally, he alleges that when the lamp fell on him asleep, he was there 'pursuant to and by virtue of said renting.' Such allegations cannot all be true. If the apartment and the lamp had been leased to appellant, respondent could not have had exclusive control or management. If respondent was in exclusive control, then it did not lease the unit to appellant. Taking the allegations most strongly against the pleader, he was never a tenant of respondent and the latter owed him no duty. If the apartment was leased to appellant, he was responsible for a condition that had continued for fifteen months. Not only do antagonistic allegations fail to state a cause of action, but also they render a complaint ambiguous and uncertain. Powell v. Powell, 112 Utah 418; 188 P.2d 736, 737. As against a special demurrer, a complaint must declare the essential facts with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source and extent of his cause of action. Goldstein v. Healy, supra, 187 Cal. at page 210, 201 P. 462. When a plaintiff has failed so to plead, upon appeal, it will be presumed that he has set forth his cause of action as effectively as possible in his favor; and having failed to amend, the judgment must be affirmed. Metzenbaum v. Metzenbaum, 86 Cal.App.2d 750, 752, 753, 195 P.2d 492.
Count II
Count II is uncertain and ambiguous. It alleges that defendant knew or could have known that the lamp was in a dangerous and unfit condition. But such allegation does not declare defendant actually knew the lamp was unfit. Phipps v. Western Pacific Development Company, 60 Cal.App. 171, 173, 212 P. 407. It merely alleges defendant could have known. In the absence of an allegation that defendant had actual knowledge, or could have had in the exercise of reasonable care, and that he concealed such knowledge, it cannot be said that defendant 'held out and orally represented to plaintiff that the lamp was in a safe and useable condition.' In the absence of actual knowledge, the quoted allegation is a mere conclusion of the pleader without a statement of fact to serve as a basis for it. The allegation 'that all during said tenancy and at the time of the occurrence of the accident * * * said lamp was in an unsafe and dangerous condition' et cetera does not improve the pleading. The fact there alleged might have been ascertained after the accident. Fisher v. Pennington, 116 Cal.App. 248, 2 P.2d 518, is not authority for the complaint. Miss Fisher suffered her injury during the first month of her tenancy. It resulted from a latent defect in the bed's attachment to a door which fell upon the lady. The bed was connected to the door by small plates fastened by screws that could easily be removed and was therefore personalty. Not only was there an implied warranty of the bed's fitness for use but there was no evidence from which it could reasonably have been inferred that the door's collapse was the result of the wrongful use of the bed or other carelessness of the lady. Appellant neglected to keep the bed in good repair. As proprietor he was liable for damages caused by the defects of his furniture, Civ.Code, sec. 1833, and was responsible by virtue of his want of ordinary care in the management of his property. Civ.Code, sec. 1714.
A bed attached to a door is not analogous to a lamp standing five feet high in a bedroom. During fifteen months such a lamp was a daily companion of appellant and his wife. The fact that it was 'top-heavy, loosely put together, and liable to lean and topple over without cause' must have been observed frequently during tenancy by appellant. To move it once would have betrayed its vices, and if its construction was as defective as described by the complaint, it was incumbent upon appellant in the exercise of reasonable care for the welfare of his wife and himself to request its removal and exchange for another.
As to appellant's allegation that defendant 'held out and orally represented to plaintiff that the lamp was in a safe and usable condition' the case of Toner v. Meussdorffer, 123 Cal. 462, 56 P. 39, 40, is not without its value as a precedent. It was alleged that in reliance by the plaintiff upon certain false assertions of defendant at the time of hiring to the effect that the premises were entirely safe and in perfectly sound condition, plaintiff in reliance upon and belief in such statements leased the property of defendant; that plaintiff had no knowledge or belief upon the subject, but the nails and posts in the rear gallery were at the time of the hiring and during the occupancy by plaintiff, 'insecure, defective, rotten, and insufficient to hold said fence in place.' At no time during the occupancy and until the accident did plaintiff have any knowledge or belief except by defendant's assertion. The condition of the rear gallery was inherent and not apparent and was not disclosed to plaintiff but this was followed by the allegation that defendant 'asserted positively, and without qualification, that the premises were entirely safe and in a perfectly sound condition, in the absence of any knowledge * * * on the part of defendants as to the truth of the assertion, and that the defect was inherent and not apparent upon exterior view.' Because the defect was so latent that plaintiff's family did not discover it during five months' occupancy, because the assertion was made in good faith by defendant, and because before making his statements he was not asked to make such examination as would have led to a discovery of the defect, no fraud was committed by defendant. The statement charged to respondent was 'little more than what would be called 'simplex commendatio' * * * to all such transactions the rule of caveat emptor applies.' Indeed, by what logical process or rule of reason could a landlord be liable to a roomer for the intrinsic construction of a standard lamp after the tenant has lived with it for more than a year before he was injured by its fall?
At its best, the second count is ambiguous in that it declares on both oral representations and a warranty without alleging them in separate counts. Also, it is uncertain in that (1) it does not appear whether defendant maintained the lamp near plaintiff's bed by attaching it securely to the floor or merely stood it on the floor so that it could have been removed from one place to another; (2) it does not appear how defendant exercised full and exclusive control of apartment 425 and the lamp while plaintiff occupied that apartment as tenant; (3) it does not appear why it could not be observed by plaintiff that the glass bowl at the top of the lamp was larger and heavier than the base of the lamp as readily as by defendant; (4) it is not alleged by what means, method or manner defendant so negligently maintained or managed the lamp as to cause it to fall; (5) it does not appear whether there was an oral express warranty or merely an implied warranty.
Third Count
Appellant has made a third cause of action by adopting portions of his first and second counts. He adds nothing to such adopted allegations. In his brief he argues it under the proposition that 'a hotel guest states a cause of action by alleging the hotel retained exclusive ownership and control over a latently dangerous lamp let to the guest where the hotel knew of the danger but the guest did not and the lamp fell on the guest as he slept inflicting great injury.' He supports his thesis by contending that a plaintiff so injured may prove the negligence by establishing a violation of the statutes, Civ.Code, secs. 1833, 1955, relating to the letting of such a movable. He contends that section 1955 is pertinent for the reason the lamp was never put in condition fit for the purpose for which it was let. Again appellant is in error in that his complaint does not allege that defendant had actual knowledge of the unfitness of the lamp. A landlord is not liable upon warranty for an injury resulting from a latent defect as shown above. A lessee is bound to make a reasonably careful inspection of the premises he contracts to occupy as tenant and the equipment to be used by him. Powell v. Stivers, supra, 108 Cal.App.2d at page 75, 238 P.2d 34. He may not languidly enter an apartment, use its furnishings day and night for months on months, and recover damages because a standard lamp fell upon him.
The authorities cited by appellant are not pertinent since the pleading is insufficient as against either the special or general demurrers.
The judgment is affirmed.
McCOMB and FOX, JJ., concur. --------------- * Opinion vacated 282 P.2d 890. 1 Paragraphs I and II are formal.