Dean v. Hershowitz

• Decision Date: 21 January 1935
• Citation: 177 A. 262,119 Conn. 398
• Court: Connecticut Supreme Court
• Parties: DEAN v. HERSHOWITZ.

177 A. 262

119 Conn. 398

DEAN v. HERSHOWITZ.

Supreme Court of Errors of Connecticut.

January 21, 1935

On Motion to Require Certification of Evidence.

Appeal from Superior Court, New Haven County; Patrick B O'Sullivan and Arthur F. Ells, Judges.

Action by Dolly Dean against Bessie Hershowitz to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. Defendant's demurrer to the substituted complaint was overruled and a motion to expunge denied, and verdict and judgment were for plaintiff, and defendant appeals.

Error judgment set aside, and new trial ordered.

The defendant filed a motion that the trial court be directed to certify the evidence, which motion was denied.^[1]

Where a party desires to appeal from a decision of a trial court upon a motion to set the verdict aside, the only procedure known to our law is that provided by sections 5692 and 5693 of the General Statutes and the rules of this court under them. These require an appeal, not from a judgment of the court but from the decision upon the motion. Marcil v. A. H Merriman & Sons, Inc., 115 Conn. 678, 163 A. 411. It is true that where an appeal is filed within the time allowed by the rules from the decision upon the motion and is accompanied by a proper assignment of error, the mere fact that the appeal purports to be taken from the judgment of the court may be disregarded. Schmidt v. Schaub, 115 Conn. 208, 161 A. 98. But an appeal from the decision upon the motion cannot be combined with one from a judgment entered upon the verdict into a single appeal. That is what the defendant has attempted to do in this case. The appeal was taken from the judgment of the court; it was not accompanied by any assignment of errors, as would be necessary if the appeal was from the decision upon the motion (Rules for Appellate Procedure, §§ 3 and 4, as amended); and a request for a finding was filed, which would be proper only on an appeal from the judgment. The trial court was correct in construing the appeal to be one from the judgment and, there being no appeal from the decision of the motion, no purpose would have been served in certifying the evidence.

The motion to this court to direct the trial court to certify the evidence is denied.

J. Warren Upson, of Waterbury, for appellant.

Edward L. Reynolds and George J. Grady, both of New Haven, for appellee.

Argued before MALTBIE, C.J., and HAINES, BANKS, AVERY, and JENNINGS, JJ.

MALTBIE, Chief Justice.

The substitute complaint in this case contains the following allegations: The plaintiff and defendant agreed to enter into a written lease of certain premises owned by the latter at a certain annual rental, provided the defendant made certain repairs inside and outside of the building which were necessary to make the premises tenantable and which were to be completed before occupancy began. Among the repairs to be made was the replacing of the floor of the front porch. In reliance upon the defendant's agreement to repair, the parties on May 15, 1931, executed a written lease of the premises. On or about June 1, 1931, and thereafter, the plaintiff complained to the defendant's agent of their failure to repair the porch, and on these occasions the defendant or her agent acknowledged the agreement and promised to carry out her undertaking, blaming her employees for the failure to do so. On August 20, 1931, the repairs still not having been made, one of the boards in the floor of the porch broke, the plaintiff's leg and foot went through the opening, and as a " proximate result of the negligence of the defendant in falling to repair said defective front porch" after notice of the defect, she suffered certain injuries, stated in detail. At the time of the injuries the plaintiff was conducting a rooming house and a retail stand, and by reason of her injuries she was deprived of large sums of money due to her inability to carry out these enterprises. She was in the exercise of due care. By an amendment to the complaint the written lease was annexed to it as an exhibit. The only provision in this lease touching upon the repair of the building was as follows: " The said lessee covenants with the said lessor to hire said premises, and to pay the rent therefor as aforesaid, to commit no waste, to repair all broken window glass, and to peaceably quit and surrender the premises at the end of the term or sooner termination of this lease, in as good condition as the same are or shall be put in by the lessor during said term, reasonable wear and use thereof, and damages by the elements excepted."

The defendant made a motion to expunge so much of the substitute complaint as stated that the injuries suffered by the plaintiff were the result of the defendant's negligence in failing to repair the porch and as described the injuries and losses she had suffered; and she also demurred to the whole complaint. The trial court denied the motion and overruled the demurrer. Subsequently the plaintiff filed an amendment to the complaint specifically alleging that the defendant negligently permitted the defective condition of the porch to continue, and the defendant filed a motion to expunge this allegation, which the trial court also denied. These pleadings raised certain issues which were also presented in one way or another at the trial and are largely decisive of the appeal. One of the defendant's claims is that, under the allegations of the complaint, there could be no recovery for negligence, that the sole cause of action presented by the facts alleged was in contract, and the plaintiff can not upon such facts recover for any personal injuries or loss of business occasioned by the breaking of the floor.

In Stevens v. Yale, 101 Conn. 683, 127 A. 283, the plaintiff sought to recover for personal injuries suffered when she fell upon a platform leading from a tenement house in which she occupied, an apartment; her fall being due to slipping upon ice which had formed by reason of a defect in a water leader. The plaintiff construed her complaint as stating two causes of action; one based upon the fact that the defendant, the owner of the building, had retained the common water drainage system of the building his exclusive control, and the other upon the defendant's negligence in failing to repair the leader after he had promised to do so. The trial court in its charge, as an examination of the record shows (278 Records and Briefs, pp. 1487, 1505A), submitted both the causes of action to the jury. They returned a general verdict for the plaintiff. Upon an appeal to this court we considered both these claimed causes of action and held that there was no error. It is true that, as we found no error in regard to the first, an error as to the second would not have been sufficient, ground for directing a new trial. Maggay v. Nikitko, 117 Conn. 206, 210, 167 A. 816. But we did carefully consider the right of the plaintiff to recover upon the second cause of action and, while recognizing that the weight of authority was to the contrary, sustained it. We said (page 693 of 101 Conn. 127 A. 283, 286): " The first claimed cause of action in the complaint in this action is for a breach of duty arising by operation of law out of the relation of the parties, or out of the implied covenant to repair. The second claimed cause of action is for a breach of duty arising by operation of law out of the promise to repair a named defect made during the term of the lease and negligently fulfilled. Both are actions of tort for breach of duty imposed by law. The court did not err in its instruction as to these causes of action." In Newman v. Golden, 108 Conn. 676, 678, 144 A. 467, 468, we interpreted this decision as holding that " out of a valid and enforceable agreement on his [the lessor's] part to make repairs might arise an obligation the breach of which would give rise to an action for negligence." These decisions, unless we are to overrule them, are controlling, as the trial court considered, upon this phase of the case before us.

It is true that it is generally held that in an action for the breach of such an agreement as the one involved in this case damages to the tenant for resulting personal injuries are, as regards an action based upon the breach of that contract, not within the contemplation of the parties when it was made and so not recoverable, and that an action in tort cannot be based upon an obligation of the landlord to repair based upon an agreement on his part to do so. Notes, 8 A.L.R. 765, 68 A.L.R. 1194. The latter proposition is disapproved in the American Law Institute Restatement, Torts, vol. 2, §337. The result of the decisions referred to in the notes cited is, as was pointed out in the Stevens Case, that where a person rents premises which are out of repair in reliance upon an agreement of the landlord to repair them, and suffers personal injuries due to a failure of the landlord to keep the agreement, he is remediless. To apply this rule in a case where the want of repair is such as to make likely a personal injury to the plaintiff would be often to deny him the very protection from injury for which he has bargained and which has come about from the defendant's breach of an obligation which he must have reasonably known to have been intended to prevent that injury. We have no need to consider in this case the question whether in such a case the tenant might recover the damages he has suffered in an action upon the contract, for if the plaintiff here was entitled to recover upon the basis of negligence, the damages he sought certainly upon the face of the complaint could not be said to be beyond the permissible recovery in an action of that nature.

The question as to when and to what...