Dalkowitz Bros. v. Schreiner

• Decision Date: 22 April 1908
• Citation: 110 S.W. 564
• Parties: DALKOWITZ BROS. v. SCHREINER.
• Court: Texas Court of Appeals

110 S.W. 564

DALKOWITZ BROS. v. SCHREINER.

Court of Civil Appeals of Texas.

April 22, 1908.

Rehearing Denied May 27, 1908.

Appeal from Bexar County Court; Phil. H. Shook, Judge.

Action by Dalkowitz Bros. against Mrs. L. B. Schreiner. Judgment for defendant, and plaintiffs appeal. Reversed and rendered.

J. Ira Kercheville and Marcus W. Davis, for appellants. Leo Tarleton, for appellee.

JAMES, C. J.

The action is by Dalkowitz Bros. against Mrs. Schreiner for $334.49 as damages for injuries to goods, alleged to have been sustained from a defective roof, which leaked and injured the goods in the building leased by appellee to appellants. The testimony is not conflicting. The facts are as follows: The building was under lease to appellants, and had been for several years, and the roof had been subject to leaks. About the middle of April, 1906, as testified to by Mr. Schreiner, who was the agent of his mother, Dalkowitz was complaining of the roof leaking, and he told him: "I don't have to repair the house; but, as it has leaked ever since you went into it, I will put a new roof on it, but would rather put a tin roof on than any of the composition roofs; and we agreed to that, and I got A. H. Shafer to do the work." After the new roof was on, and when the first rain came, on April 29th, it leaked again and injured appellants' goods, the extent of which is shown by the undisputed testimony to have been $314.71. The testimony clearly shows that appellee, through her authorized agent, undertook to remedy the leaky condition of the roof by putting on a new roof, and that she set Shafer to work to do this, who left it in leaky condition, and that the work was negligently done by Shafer, and that from this the injury resulted.

The law applicable to the above state of facts is not in an unsettled condition. The landlord, in the first instance, was under no obligation to the tenant to repair this roof, but undertook to do so by putting on a new roof, and thereby, under all the authorities, assumed the responsibility of doing this work with due care in reference to its tendency to inflict damage upon the tenant. It is well settled that such undertaking, though gratuitous, is attended by a duty to perform the service in a careful manner, and is not destitute of consideration to support it. See Gregor v. Cady, 82 Me. 131, 19 Atl. 108, 17 Am. St. Rep. 466; Mann v. Fuller, 63 Kan. 664, 66 Pac. 627; Wertheimer v. Saunders, 95 Wis. 573, 70 N. W. 824, 37 L. R. A....