Hughes v. Westchester Development Corporation

• Citation: 77 F.2d 550,64 App. DC 292
• Decision Date: 22 April 1935
• Docket Number: No. 6254.,6254.
• Parties: HUGHES v. WESTCHESTER DEVELOPMENT CORPORATION.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

64 App. DC 292, 77 F.2d 550 (1935)

HUGHES v. WESTCHESTER DEVELOPMENT CORPORATION.

No. 6254.

United States Court of Appeals for the District of Columbia.

Argued December 7, 1934.

Decided April 22, 1935.

Max L. Shulman and E. Russell Kelly, both of Washington, D. C., for plaintiff in error.

James E. Shifflette, of Washington, D. C., for defendant in error.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

ROBB, Associate Justice.

Writ of error to the Municipal Court.

Defendant in error, as plaintiff, sued defendant (plaintiff in error) for rent alleged to be due under a lease agreement between them by which, according to the affidavit of merit, apartment 442-B, Westchester Apartments, was leased to defendant for a period of 12 months, beginning the 1st day of October, 1932, and ending the 30th day of September, 1933. Defendant entered into possession and apparently paid the rent until February, 1933, when the check for rent for that month was permitted to be protested. On the 21st of April, following, defendant vacated the apartment.

Defendant filed an affidavit of defense, the legal sufficiency of which was challenged by plaintiff. A substituted affidavit was filed by leave of court. This likewise was challenged, and the court permitted a second substituted affidavit of defense to be filed, which similarly was challenged, and the court, after argument, sustained plaintiff's motion for judgment for want of a sufficient affidavit of defense. The averments of the affidavit, according to plaintiff in error's brief, are substantially as follows: Plaintiff in error (defendant) entered into a lease agreement for the rental of an apartment in the Westchester Apartments for the use and occupancy of his mother, as her home, at a monthly rental of $77.50. At the time this apartment was first occupied by the mother, she discovered that it was overrun with cockroaches, bugs, and other insects, and thereupon reported its condition to the agents of plaintiff. She had made every possible effort through the use of chemicals, powders, and sprays to remedy this condition, to no avail.

Furthermore, during the entire occupancy of the apartment there were frequently heard loud sounds of radios, fights, arguments, dancing, and other disturbances at various hours of the day, night, and early morning to the great discomfort and impairment of the health of the mother of defendant. Subsequently, as a result of a certain family misfortune she became seriously ill and highly nervous, and in her then condition of health she was unable longer without serious impairment to her health to cope with the conditions of the apartment and its immediate environment, due to the fact that the apartment was still overrun with roaches, bugs, vermin, and other insects, making it nearly impossible to use the kitchen and toilet facilities of the apartment. That although the mother on numerous occasions had reported and complained of the conditions in and about the apartment, which conditions rendered the apartment uninhabitable, unsanitary, and dangerous to the health of the occupant, she received no relief and was forced by the existing conditions to vacate the apartment.

Defendant contends that this is a case of constructive eviction. It is settled law that to constitute such an eviction the landlord must have done, or be responsible for, some act of a permanent character with the intention and effect of depriving the tenant of the enjoyment of the demised premises or a part thereof. Pinching v. Wurdeman, 56 App. D. C. 223, 12 F.(2d) 164; Gibbons v. Hoefeld, 299 Ill. 455, 462, 132 N. E. 425; Shindler v. Milden, 282 Mass. 32, 184 N. E. 673; Talbott v. English, 156 Ind. 299, 59 N. E. 857. But the law assumes that the landlord intends the natural and probable consequences of his acts. Skally v. Shute, 132 Mass. 367; Shindler v. Milden, 282 Mass. 32, 184 N. E. 673. Fifty years ago, in Fisher v. Lighthall, 4 Mackey (15 D. C.) 82, 54 Am. Rep. 258, it was ruled that upon a demise...