Hamilton v. Feary
| Decision Date | 20 October 1893 |
| Docket Number | 915 |
| Parties | HAMILTON ET AL., EXECUTORS, v. FEARY |
| Court | Indiana Appellate Court |
Petition for a rehearing overruled Jan. 12, 1894.
From the Shelby Circuit Court.
Judgment reversed.
T. B Adams and I. Carter for appellant.
A. C Harris, K. M. Hord and E. K. Adams, for appellee.
OPINION
This case was tried in the court below, upon the second paragraph of the complaint, to which a demurrer was overruled.
The appellee was the tenant of the appellant, in a dwelling house owned by the latter. The action was for the recovery of damages for a personal injury sustained by the appellee while in the occupancy of the premises. The trial was by a jury, and there was a verdict in favor of the appellee for $ 2,500, upon which, over appellant's motion for a new trial, and other motions, judgment was rendered.
The overruling of the demurrer is the first specification of error.
The substance of the paragraph of complaint to which the demurrer was addressed, is as follows:
That on the 22d day of February, 1890, the appellee leased, in writing, from the appellant the premises described; that by the terms of the lease appellee was to pay, as rent therefor, the sum of $ 8.33 per month, in advance; that the tenancy was to begin on said date and to continue for six months thereafter; that she was to keep the property in good condition, not sublet the same, and to give possession thereof at the end of six months. A copy of the lease was filed with this paragraph of complaint, as exhibit "A."
It is further alleged that appellee did not take possession under the lease on said day, and that after the execution of the lease, and before appellee took possession of the property, it was agreed between the parties that appellee should not, and would not, be required to pay the first month's rental until she had taken full possession.
It is then averred that there was, at that time, and for several months subsequent thereto, located upon said lot and in the rear of said house, a circular excavation, about five feet in depth and about seven feet in diameter, which appellant had caused to be made, intending thereby to make a cistern; that a portion of the said dwelling house was then badly in need of being papered, the walls being smoked and dingy in appearance; that after the signing of said lease, to wit, on the 24th day of February, 1890, and before any act had been done thereunder, and before possession had been taken by the appellee, and before there was any breach of the terms of said lease by either party, appellee having discovered for the first time the excavation aforesaid, and the condition of the walls aforesaid, refused to take possession of said premises under the said lease, or to pay any sum of money as rental for said premises under said lease, or to comply with any of the terms of said contract; that thereupon, and upon said day, appellee and appellant entered into a parol modification of said lease, as follows: That the said Hamilton, to induce appellee immediately to take possession of said premises as his tenant, and to pay him the said rental therefor, then and there agreed with appellee that if she would, on that day, take possession of said premises and continue as tenant therein for the said period of six months, at the rate and under the terms mentioned in said lease, and if she would, on that day, pay him the sum of $ 8.33 in cash, as the first month's rental, that he would immediately thereafter finish said excavation and make a good cistern, by making the same deeper and walling up the same, and would cover up and repair the said excavation so that the same would and could not endanger the lives or bodies of persons who should go upon said lot or in proximity to the place where the excavation existed; that appellant also agreed to paper said house and put the whole thereof in good condition for the use of the appellee, who desired the use of all of said property for a dwelling for herself and family; that thereupon, and before appellee had taken possession of said property, she paid the appellant the sum of $ 8.33, and immediately thereafter went into the possession of said premises under said lease and said modification thereof, and occupied the same under said lease, as modified, for and during the period aforesaid, for all of which she fully paid appellant at the rate aforesaid, and in all things fully performed her part of said agreement and the said modification thereof; that at the time of said renting, and during the period of said tenancy, the appellant had located and maintained, near the edge of said excavation, a well, in which was a pump, from which, under said lease, appellee obtained water for domestic purposes, said well being the only place on said lot from which water could be obtained; that appellant complied with his said agreement to paper the walls of the said house, but that, although often requested so to do, prior to the injuries herein set out, he neglected and refused to complete said cistern, and allowed the same to remain in the unfinished condition aforesaid during the whole of said period of six months; that heretofore, to wit, on the 26th day of July, 1890, and in the night time, and while appellee was prudently and carefully trying to get some needed water from said well by means of said pump, and while she was standing upon the ground near said excavation, and no nearer than was necessary in order to get said water, she being near to said pump and in the proper place to get water therefrom, the earth surrounding said excavation, and upon which she was standing, caved and fell into said excavation so suddenly and unexpectedly to her that, without any fault or negligence on her part, she was thereby precipitated and thrown violently and with great force into said excavation, and upon a piece of timber lying at the bottom thereof, resulting in serious bodily injury to her, as hereinafter set out; that said excavation was made, as set out, and without any walls or other barriers thereto, whereby said adjoining earth could be held in place, and that by reason of the same remaining in such condition during the period aforesaid, the earthen walls of said excavation had become, at the time of said injury, so undermined and in such dangerous condition as to result in the injury aforesaid, which condition was perceptible to appellant; that appellee had no knowledge, prior to said injury, that the earth surrounding said excavation was in said undermined and dangerous condition, and she believed, up to said time, that the same was firm and would support her weight thereon; that by reason of said fall appellee sustained the following injuries, to wit.
Then follow a description of the injuries and an averment that the same were not caused by the act, fault or negligence of the appellee, but were wholly the result of the said wrongful and negligent acts of appellant.
The complaint then proceeds to specify the damages and concludes with a prayer for $ 5,000 judgment.
A copy of the lease is set out, and, as indicated in the complaint, it contains no stipulation for the making of repairs on the part of the appellant. Assuming that the modified agreement was such as obligated the appellant to place the excavation in a condition of safety, does the appellee show herself entitled, by the averments of the complaint, to the remedy here pursued?
Appellee's counsel construe the action to be upon the contract to repair. As such, is the complaint sufficient? Without an express agreement to make repairs, it does not devolve upon the landlord to do so. This is conceded. Assuming that, in the present case, there is such an agreement, what redress is the tenant entitled to for a breach of the obligation?
Appellant's counsel contend that in such case the tenant may either abandon the premises, or make the repairs himself and recoup the expense therefor in an action by the landlord for rent.
On the other hand, the appellee's position is that the tenant need not pursue either of these remedies, but may sue in damages and recover for any injury proximately flowing from the breach of the covenant. Taylor Landlord and Tenant, section 330; Buck v. Rodgers, 39 Ind. 222; McCoy v. Oldham, 1 Ind.App. 372, 27 N.E. 647.
That this position is well taken, we shall not undertake to controvert.
It may be stated, as a general rule, that for a breach of contract in any case the injured party is entitled to recover such damages only as proximately resulted from the breach, and were within the contemplation of the parties when the contract was entered into. Damages which are remote and speculative can not be recovered. 5 Am. and Eng. Encyc. of Law, 13.
In this respect the rule is not different from what it would be if the contract to repair had been between the tenant and a mechanic or workman employed by her to do the work. The only damages recoverable in such case would be the difference between the price agreed upon and the actual cost of the work if the employer had hired another to do it, and possibly such other damages as were sustained by reason of the delay. This would be especially true if the employe had repudiated the contract after reasonable notice to her, or had positively refused to perform it; for, upon such refusal, it would have been the privilege of the employer to treat the contract as rescinded, and she could have hired the work to be done by another.
We shall not undertake to assert that if the employe had repeatedly promised to do the work upon being requested to do so, and had thus led the employer to rely upon his carrying out the promise, he might not be held liable as for special and...
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