Crowell v. Housing Authority of City of Dallas
| Decision Date | 20 July 1972 |
| Docket Number | No. 637,637 |
| Citation | 483 S.W.2d 864 |
| Parties | Lewis CROWELL et al., Appellants, v. HOUSING AUTHORITY OF the CITY OF DALLAS, Appellee. |
| Court | Texas Court of Appeals |
Gerald W. Livingston, Charles L. Caperton, Dallas, for appellant.
Strasburger, Price, Kelton, Martin & Unis, Eugene Jericho, H. Norman Kinzy, Dallas, for appellee.
Appellants brought this suit as the children and heirs of Arbe J. Crowell, deceased, alleging under the survival statute, Article 5525, Vernon's Ann.Civ.St., that their father died as a result of carbon monoxide gas poisoning sustained from a defective gas heater provided in the apartment leased to him by appellee, and that appellee had exclusive responsibility of maintenance and repair. Appellee filed a motion for summary judgment on the ground that there was no genuine issue as to any material fact because the lease contract signed by deceased provided that appellee shall not be liable for any damages to a tenant such as deceased which might be caused by the condition of the premises. The trial court granted appellee's summary judgment motion and appellants bring this appeal on one point.
Appellants contend that the trial court erred in giving effect to the exculpatory clause in the lease agreement. The clause in question (part of Sec. 7 of the lease) provides: '* * * nor shall the Landlord nor any of its representatives or employees be liable for any damage to person or property of the Tenant, his family or his visitors, which might result from the condition of these or other premises of the Landlord, from theft or from any cause whatever.'
The argument of appellants is that such an agreement violates public policy. They argue that such clause is unreasonable in that by its terms it permits the appellee to cause the death of the deceased with impunity and without liability, and that it represents an attempt by appellee to extract from a person of a class it was created to serve a waiver of liability for failure to carry out its statutorily imposed duties and purposes as a condition to obtaining the benefits it was designed to bestow and is therefore void as against public policy.
Appellee's position is that the trial court was correct in giving effect to the clause quoted above from Sec. 7 of the lease and was therefore correct in granting the summary judgment. Appellee says that the duties of a landlord to his tenants may be modified by contract, and that the exculpatory clause in the lease evidences a mutual intent that the landlord shall not be liable for its own negligence.
Although 'public policy' is a vague and broad term, it basically comprehends the protection of the public or the public good. Generally, a contract will not be held contrary to public policy if it is not immoral in itself or in conflict with any express law, or if the injury to the public is not clearly apparent. 13 Tex.Jur.2d Contracts, Sec. 171, pp. 364--367, Nedow v. Nicholson, 381 S.W.2d 723 (Tex.Civ.App., Houston, 1964, writ ref., n.r.e.). To be contrary to public policy a contract must also involve the interest of others than the parties to it. Evans v. General Insurance Company of America, 390 S.W.2d 818 (Tex.Civ.App., Dallas, 1965, n.w.h.).
In Spence & Howe Construction Company v. Gulf Oil Corporation, 365 S.W.2d 631 (Tex.Sup., 1963) it is said by Judge Norvell: '(o)nly a few jurisdictions, and Texas is not one of them, hold that a contract of indemnity against the results of one's negligence is contrary to public policy in that such contracts tend to encourage careless conduct.' And in Ohio Oil Company v. Smith, 365 S.W.2d 621 (Tex.Sup., 1963), it is said: '(i)n this state, contracts written or construed so as to allow indemnity for liability arising out of indemnitee's own negligence have long been held not to be violative of the public policy.' The Spence & Howe case involved a construction contract, and the Ohio Oil case involved an oil field work-over contract.
Mitchell's, Inc. v. Friedman, 157 Tex. 424, 303 S.W.2d 775 (1957), involved a building lease which had a provision that 'the Lessor shall not be liable to Lessee * * * for any damage to person or property, * * * due to the building on said premises or any appurtenances thereof being improperly constructed, or being or becoming out of repair, nor for any damages from any defects or want of repair of any part of the building of which the leased premises form a part * * *.' The court there said: '(a)n obligation to hold harmless from claims, liability or damage resulting from a specified operation or instrumentality will be enforced in accordance with its terms even though the indemnitee may thereby be relieved of the consequences of his own negligence.'
It is not necessary that the contract specifically use the word 'negligence,' nor is it necessary to describe in detail or particularity what event or occurrence is to be covered in a contract as here presented provided the wording of the contract is sufficiently broad to cover the negligence of the indemnitee, and the intention of the parties be clear that such should be covered. Spence & Howe Construction...
To continue reading
Request your trial
-
Crowell v. Housing Authority of City of Dallas
...leased by him from respondent. The trial court granted respondent's motion for summary judgment, and the Court of Civil Appeals affirmed. 483 S.W.2d 864. We reverse the judgments of the courts below and remand the cause to the district court for Petitioners alleged that respondent had exclu......