O'Connor v. Andrews

• Decision Date: 12 May 1891
• Citation: 16 S.W. 628
• Parties: O'CONNOR v. ANDREWS.
• Court: Texas Supreme Court

16 S.W. 628

O'CONNOR v. ANDREWS.

Supreme Court of Texas.

May 12, 1891.

Appeal from district court, Dallas county; GEORGE N. ALDREDGE, Judge.

Crawford & Crawford, for appellant. Robertson & Coke, R. B. Leay, Edward Gray, and H. G. Robertson, for appellee.

HENRY, J.

Appellee instituted this suit in the district court of Dallas county to recover damages for injuries alleged to have been received by Mrs. Andrews, wife of appellee, by the falling of a cornice and fire-wall from appellant's building on May 8, 1885. The petition alleges that on the 8th of May, 1885, appellant was the owner of a two-story brick house, situated on the corner of Elm and Lamar streets and Pacific avenue, in the city of Dallas, the west wall of the building extending along the east side of Lamar street from Elm street to Pacific avenue, and that appellant was in possession of said building, and that it was his duty to keep the wall and cornice in safe condition; that he negligently permitted the cornice and fire-wall to become unsafe and dangerous; that on said date the cornice and fire-wall fell to the sidewalk, and struck and knocked down and seriously injured Mrs. Andrews, who was at the time passing along the east side of Lamar street. Appellant pleaded as follows: (1) A general denial. (2) "That at the time the cornice and fire-wall fell appellant was not in possession of any part or parcel of the building, but that the whole of it was leased to tenants, who were under obligations to keep the same in repair; that the whole of the upper story was used and occupied by the Western Union Telegraph Company, under a lease made in November, 1883, which had not expired at the time of the accident; that said company had so occupied the upper story of the building since November, 1881, and before that time; that by the terms of the lease the telegraph company was to repair the building, and was not to call upon appellant for any outlays whatever in reference thereto." (3) "That before the date of the accident the electric light company, without the knowledge or consent of appellant, stretched and hung the wires used in the conduct of its business from and across the cornice, and upon the date of the accident had negligently permitted the lamp which hung from the electric light wire into Lamar street to hang so low and near the ground that a wagon driven along Lamar street got fastened in the lamp attached to the wire, and that the cornice was pulled down by the wagon and wire without any fault or negligence on the part of appellant, but by the negligence of the electric light company." Upon the verdict of a jury judgment was rendered in favor of the plaintiff for $700.

The plaintiff introduced evidence showing that his wife was injured while she was passing along the sidewalk on the street, by the falling of the fire-wall and cornice, as alleged in his petition, and also tending to show that the part of the building that fell was out of repair, and in a dangerous condition. The defendant testified that he was the owner of the building at the time of the injury to plaintiff's wife; that the lower portion of the building was then leased to and occupied by the City National Bank, of which defendant was president, and two other persons, one of whom kept a clothing store and the other one a saloon, and the up-stairs to the Western Union Telegraph Company; that he had no portion of the building as a separate apartment for his individual use; that he was paid a salary as president of the bank; that he wrote most of his letters and transacted the greater part of his private business at the bank, and used the bank's desk, having none of his own there, and kept his papers in the bank's safe, as its other customers did; that he did not reserve the right to transact his private business in the office of the bank; that a stairway led from the front of the building to the second story; and that he paid for the repairs to the building after the accident. The terms and conditions of none of the leases were proved.

Among other things, the court instructed the jury that "every owner of a building is required by law to use reasonable care and diligence to keep it in such condition that it will not inflict injury upon others, and, if he fails to do so, and injury is caused thereby, such failure would be negligence. This is subject to the following qualifications: If all of said building had, before said accident, been leased to tenants, including the cornice and fire-wall that is claimed to have fallen, then the duty of keeping said cornice and fire-wall in repair was upon said tenants, and not upon defendant; hence, if you so find the tenancy to be, you cannot find that defendant was negligent, unless you find that said cornice and fire-wall were in a dangerous condition when he leased said building, and that he then knew of its defects, or, by the use of reasonable prudence and care, could have known of their existence." The defendant requested the following charges, which were refused: "The tenant, and not the landlord, is prima facie liable to third persons for damages resulting to them on account of injuries caused by not having the rented premises in proper repair. The plaintiff alleges that the defendant was the owner and occupier of the building at the time the cornice and fire-wall fell, in May, 1885. Before the plaintiff can recover, he must prove the allegations as made by him; that is, that the defendant at the time of the accident was the owner of the building, and was in possession of the same. If the testimony shows that the building was leased to various tenants, one of them being the City National Bank, the fact that the defendant was president of the bank would not be such possession or occupation as would make him the occupier of the building. By the possession of the owner in law is meant the owner's right to control and manage the property, and, if the proof shows that all the rooms in the building were occupied by tenants, the defendant is not liable in this action, there being no allegation in the petition that the defendant had made any agreement to repair the premises."

Error is assigned upon the refusal of the court to give the requested charges, and the appellant submits the following propositions in support of his assignment: (1) "The occupant is prima facie liable to third persons for damages accruing to them from defects in the leased premises." (2) "To the general rule above stated there are two exceptions: First. Where the landlord has, by express agreement between the tenant and himself, agreed to keep the premises in repair. Second. Where the premises are let with a nuisance upon them, by means of which the injury complained of is received. When either exception is relied upon, the facts rendering the landlord liable must be alleged and proved."

The rule of law is well settled that the tenant, subject to the exceptions mentioned in the second proposition, is bound to repair the premises leased to him. In the absence of any contract on the subject of repairs, the tenant, and not the landlord, is responsible for them, and for damages resulting from the want of repair. Such liability of the tenant is a presumption which will be indulged in the absence of evidence, but never against it, and which will be applied in...