Flynn v. Pan American Hotel Co.

• Decision Date: 08 November 1944
• Docket Number: No. A-180.,A-180.
• Citation: 183 S.W.2d 446
• Parties: FLYNN v. PAN AMERICAN HOTEL CO.
• Court: Texas Supreme Court

Page 446

183 S.W.2d 446

FLYNN v. PAN AMERICAN HOTEL CO.

No. A-180.

Supreme Court of Texas.

November 8, 1944.

Rehearing Denied December 8, 1944.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Martin Flynn against the Pan American Hotel Company for personal injuries. A judgment for defendant based on an instructed verdict was affirmed by the Court of Civil Appeals, 179 S.W.2d 849, and the plaintiff brings error.

Judgments of district court and Court of Civil Appeals affirmed.

Elmer Ware Stahl and A. R. Sohn, both of San Antonio, for plaintiff in error.

Johnson & Rogers and Nat L. Hardy, all of San Antonio, for defendant in error.

SMEDLEY, Commissioner.

Respondent Pan American Hotel Company, the owner of the property known as the St. Anthony Hotel in San Antonio, leased the building with furniture, fixtures and equipment, by written lease for a term of three years beginning July 1, 1935, to another corporation, New St. Anthony Hotel Company, which by the terms of the lease agreed to operate the property as a hotel and "to keep and maintain the same in good condition and in good state of repair, both as to the building, premises and the furniture and fixtures therein, throughout the full term hereof."

Petitioner Flynn, employed by New St. Anthony Hotel Company as its "back door man," was injured February 5, 1937, when the "back elevator," on the floor of which he was standing, dropped and he was caught between the elevator and the wall. Petitioner, as an employee of New St. Anthony Hotel Company, which was a subscriber under the Workmen's Compensation Law, collected compensation in the total sum of $3562.59 from the insurer, on account of his incapacity resulting from the injury and brought this suit against respondent for himself and his employer's insurer, alleging that the injury was caused under circumstances creating a legal liability in respondent, a corporation other than the subscriber. Art. 8307, Sec. 6a, Rev.Civ.Stat. of 1925. The Court of Civil Appeals affirmed the judgment of the trial court, rendered after instructed verdict, that petitioner take nothing by his suit. 179 S.W.2d 849.

Recovery is sought on three grounds: Negligence of respondent in the manner of making repairs when it undertook to repair and remedy the dangerous and defective doors of the elevator; negligence of respondent in failing to exercise ordinary care to maintain the elevator in repair; and the failure of respondent to equip the elevator with a device that would prevent moving it when the gate or door thereto is open, as required by statute. Acts 1925, Reg.Sess., 39th Leg., Ch. 29, Arts. 6145a and 6145b, Vernon's Ann.Civ.Stat. and Art. 1661a, Vernon's Ann.Penal Code.

The elevator by which petitioner was injured was near the back door of the hotel. It was used primarily for freight, but was also used by porters and other employees of the hotel, by Western Union messenger boys, and often by guests. Petitioner was stationed at the back door, it being his duty to make a record of all provisions and goods that came into the hotel and to examine all outgoing packages. A door led from the elevator shaft into the ball room of the hotel and it was the duty of petitioner each night before he went home to see that the door was locked. To do this it was necessary for him to enter upon the floor of the elevator. On the night when he was injured he had entered the elevator to see that the door was locked and after he put his foot on the landing and was about to step out, the elevator dropped and he was caught between the elevator and the wall.

The elevator had two sides but no front and no back. There were no doors on the elevator itself, but there was a wire mesh door covering the entrance to the elevator shaft to prevent persons from falling into the shaft when the elevator was up. At the time when petitioner was injured the elevator had not been equipped with interlocking doors or any other device that would prevent its ascent or descent when the door or gate of the elevator was open. A witness or witnesses testified to a defective condition in the direction lever of the elevator, in that a spring that held the lever in neutral position was broken or missing and a jar would cause the direction lever to drop and the elevator to move. There is evidence tending to prove that petitioner would not have been injured if the elevator had been equipped with interlocking doors or a similar safety device or if the direction lever had been repaired.

The general rule with respect to the duty of the lessor or landlord to make repairs, when the suit is by the tenant or the tenant's servant or others entering under the tenant's title, is that the landlord is under no obligation to make repairs in the absence of an agreement to the contrary. Perez v. Raybaud, 76 Tex. 191, 13 S.W. 177, 7 L.R.A. 620; Morton v. Burton-Lingo Lumber Co., 136 Tex. 263, 150 S.W.2d 239; Yarbrough v. Booher, 141 Tex. 420, 174 S.W.2d 47, 150 A.L.R. 1369; Ross v. Haner, Tex.Com. App., 258 S.W. 1036; Fort Worth & Denver City Railroad Co. v. Mills, Tex.Civ. App., 140 S.W.2d 513; 36 C.J. pp. 125-127, Sec. 766; 32 Am.Jur. pp. 521-523, Sec. 657. However, when the landlord, although he may be under no obligation to make repairs, does undertake to make them, he is liable for injuries resulting from his negligence or that of his servants or employees in making the repairs. Perez v. Raybaud, supra; Lynch v. Ortlieb & Co., Tex.Civ.App., 28 S.W. 1017, application for writ of error refused, 87 Tex. 590, 30 S.W. 545; Ara v. Rutland, Tex.Civ.App., 172 S.W. 993, reversed on another point, Tex.Com.App., 215 S.W. 445; 36 C.J. pp. 217-218, Sec. 900; 32 Am.Jur. pp. 547-552, Secs. 678-683.

Petitioner failed to make a case for the jury in that part of his suit by which he seeks to recover on account of negligence of respondent in the manner of repairing the elevator doors. The liability thus asserted is for negligence in the performance of what the landlord undertakes to do and there can be no recovery unless the injuries were the result of that negligence. 31 Am.Jur. pp. 551, 552, Sec. 682. We find no evidence in the record tending to prove that petitioner's injuries were caused by negligence in the manner or method of making the repairs on the doors. Petitioner was injured when the elevator dropped or descended as he was about to step out of it. There is no evidence that the condition of the doors that had been repaired caused the elevator to drop or in any way caused petitioner's injuries. As has been said, the evidence tends to prove that petitioner's injuries were caused either by the defective condition of the direction lever or by the absence of interlocking doors. There is no evidence that respondent ever undertook to install interlocking doors on the elevator and no evidence that it ever undertook to repair the broken direction lever and was negligent in repairing it.

Fay Chase, called as a witness by petitioner, testified that he was employed as elevator maintenance man at the St. Anthony Hotel from the latter part of 1935 until about June, 1936, being on the payroll of respondent Pan American Hotel Company for four months and thereafter on the payroll of the New St. Anthony Hotel Company; that during the whole period of his employment he took instructions from R. H. Morris, who was president of Pan American Hotel Company and from Thornton Miller, who was superintendent of construction for the remodeling done by the company; that it was a part of his duty to take care of the "back elevator"; that Westinghouse Elevator Company installed a new motor, a new control, and a new car switch station, which is a direction lever, on the elevator; that at Mr. Morris' direction in 1936 he procured bolts and patched up the doors as best he could, but they were beyond repair; that he suggested to Mr. Morris that they put collapsible doors on both ends of the elevator car, and even procured a price from the Westinghouse Company and submitted it to Mr. Miller; and that the car switch or direction lever was properly installed and was in proper repair when he left the hotel in June, 1936, and nothing had been done about installing collapsible doors. The testimony of Chase further shows that after he left the hotel and went to work at another place, and before Flynn's injury, he was in the hotel and saw that the direction lever had been broken.

The absence of interlocking doors or similar device to prevent the moving of the elevator was a defect or dangerous condition existing when the lease was executed. This defect or dangerous condition was apparent and there is no contention that respondent concealed it from the lessee. The rule in this state and in the other states, or most of them, is that when there is no agreement by the landlord to repair the premises and he is not guilty of fraud or concealment by failing to disclose defects existing when the lease is made, he is not liable to the tenant, or to employees or others entering under the tenant, for injuries caused by such defects. The tenant takes the property as he finds it, assuming the risk of apparent defects. Perez v. Raybaud, 76 Tex. 191, 13 S.W. 177, 7 L.R.A. 620; Morton v. Burton-Lingo Lumber Co., 136 Tex. 263, 150 S.W.2d 239, 150 A.L.R. 1369; Yarbrough v. Booher, 149 Tex. 420, 174 S.W.2d 47; American Exchange National Bank v. Swope & Mangold, 46 Tex.Civ App. 64, 101 S.W. 872; Johnson v. Murray Co., Tex.Civ.App., 90 S.W.2d 920; Fort Worth & D. C. Ry. Co. v. Mills, Tex.Civ.App., 140 S.W.2d 513; Harris v. Lewistown Trust Co., 326 Pa. 145, 191 A. 34, 110 A.L.R. 749, and note pp. 756-761; 36 C.J. pp. 125-127, Sec. 766, pp. 204-207, Secs. 874-877; 32 Am.Jur. pp. 515-517, Sec. 654. The rule is different as to the landlord's liability for injuries to third persons, or strangers to the premises, from defects existing when the lease was made. Marshall v. Heard, 59 Tex. 266; Perez v. Raybaud, 76 Tex....