Hanna v. Fletcher, 12050.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: PRETTYMAN, Circuit , with whom WILBUR K. MILLER and DANAHER, Circuit , join (dissenting)
• Citation: 231 F.2d 469
• Parties: Helen HANNA, Cicero Hanna, Appellants, v. Annie C. FLETCHER, Trustee of Estate of Florence Johnson, Benjamin F. Fletcher, and Fred S. Gichner Iron Works, Inc., Appellees.
• Docket Number: No. 12050.,12050.
• Decision Date: 19 January 1956

231 F.2d 469 (1956)

Helen HANNA, Cicero Hanna, Appellants,
v.
Annie C. FLETCHER, Trustee of Estate of Florence Johnson, Benjamin F. Fletcher, and Fred S. Gichner Iron Works, Inc., Appellees.

No. 12050.

United States Court of Appeals District of Columbia Circuit.

Reargued April 1, 1955.

Decided January 19, 1956.

Petitions for Rehearing Denied February 17, 1956.

Writ of Certiorari Denied June 11, 1956.

Mr. Paul R. Connolly, Washington, D. C., with whom Messrs. Francis L. Casey, Jr., and Stanley S. Harris, Washington, D. C., were on the brief, for appellants.

Mr. David G. Bress, Washington, D. C., with whom Messrs. Alvin L. Newmyer, Jr., and Sheldon E. Bernstein, Washington,

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D. C., were on the brief, for appellee Fletcher

Mr. Richard W. Galiher, Washington, D. C., with whom Messrs. Julian H. Reis, William E. Stewart, Jr., and William J. Donnelly, Jr., Washington, D. C., were on the brief, for appellee Fred S. Gichner Iron Works, Inc.

Before EDGERTON, Chief Judge, and PRETTYMAN, WILBUR K. MILLER, BAZELON, FAHY, WASHINGTON and DANAHER, Circuit Judges.

Writ of Certiorari Denied June 11, 1956. See 76 S.Ct. 1051.

FAHY, Circuit Judge.

Appellants, husband and wife, whom we shall usually refer to as plaintiffs, sued in the District Court to recover damages from the appellees, defendants, for serious injuries suffered by the wife in May, 1949. She fell into an areaway from steps leading to the street from the front door of premises she and her husband occupied as tenants. Defendant Fletcher is the landlord or lessor of the premises.¹ Defendant Fred S. Gichner Iron Works, Inc., usually referred to herein as Gichner, in 1942 had repaired the railing of the steps. The complaint alleges that the repair was negligently and carelessly performed, as a result of which the railing gave way, causing the wife to lose her balance and fall into the areaway.

After answer the case was called for trial. Upon completion of the opening statement of counsel for plaintiffs, in which he set forth the facts he expected to be able to prove, the court ruled that regardless of whether or not these facts could be proved there was nothing for the jury to decide because, as matter of law, the defendants would not be liable. The court thus permitted no evidence to be introduced. We think this was error, because the facts set forth in the opening statement, if proved and not rebutted by defendants, made out, under the legal principles hereinafter set forth, a case upon the basis of which the jury, though not required to do so, validly could have reached the conclusion that Gichner was negligent and that such negligence was a proximate cause of the accident to Mrs. Hanna. If so, for reasons hereinafter stated, a case for jury consideration was also stated against the defendant Fletcher, the landlord.

The opening statement represented that plaintiffs would prove, in addition to their tenancy, the following facts. In 1942 the cast iron front steps were in a general state of disrepair. The railing on the right as one faces the house had fallen down. Plaintiffs requested the landlord to have the steps repaired. The landlord undertook to do so. She engaged Gichner, an iron contractor, to repair the steps "as necessary." This Gichner undertook to do. Because of the allegedly negligent manner in which Gichner made the repairs, as plaintiffs offered to prove, Mrs. Hanna was caused a fall when, in descending the stairs, she leaned upon the rail and it gave way. The steps were cast iron and descended from the front of the house to the sidewalk, crossing over a basement areaway between the wall of the house and the sidewalk. Railings were located on each side of the steps to prevent those using the steps from falling into the areaway. These railings were iron pipes running diagonally from newel posts on the top step to other newel steps on the bottom step. The railings were fitted into collars and were thereby affixed to the newel posts. The newel posts did not support the railings or take the stress of forces applied against the railings. The newel posts were hollow. An anchor rod passed down through the newel posts, pierced the surface on which the newel posts rested, and was then nutted on the under side of this surface. The anchor rod thus held the rail upright, maintaining it rigid and taking the stress and strain of forces applied to the railing. The

231 F.2d 471

right hand railing collapsed in 1942 because the anchor rod holding the lower newel post had rusted through where it pierced the bottom tread. The rusting process of the rod deposited a quantity of rust on the bottom tread under the flange of the newel post. When the railing gave way it was torn from its collar on the upper newel, breaking the collar. At this time the steps were in a state of general disrepair; they rattled and were loose. The rear edge of the bottom tread, which should lock over its foundation, was broken off. The foundation riser under this tread did not have proper support. These two conditions caused the tread when stepped upon both to sag and to tilt forward. The sagging would cause the newel post to be pulled inward and the tilting would cause it to be pulled forward. Both actions would place a stress and strain upon the anchor rod at the point at which it was subjected to rusting

The opening statement also described Gichner's negligence. Gichner's 1942 repairs consisted merely of replacing the bottom anchor rod and welding the railing into the broken upper collar. These two things were inadequate to put the steps and railing into a safe condition and failed to meet good iron construction standards. The deposit of rust from the old anchor rod was not removed. The newel post was re-erected upon it. This deprived the post of a steady base, and, more important, prevented the flange of the newel post from gaining a tight seat against the tread. The flange was held away from the tread by the presence of the rust. This rust and the fracture of the old rod were a warning that any anchor rod in the lower right newel was subject to attack from a drainage of rain and melting ice and snow. Rust deposits are themselves absorbent. By failing to remove the rust deposit, Gichner allowed an open seam to remain between flange and tread. This permitted future drainage to attack the rod within, and the absorbent quality of the rust assured that for a considerable period of time the anchor rod would be encased in a wet bandage.

Plaintiffs offered to prove further that good iron repair techniques would call for the removal of the old rust deposit by chipping or scraping, which would have afforded the newel a firm tight seat on the tread. Whatever seam remained should then have been caulked or bead-welded so as to make the newel watertight. Instead, the new anchor rod was left open to the attack of drainage which was to lead inexorably to new rusting. Moreover, no proper foundation was provided under the bottom tread, nor was the rear edge of this tread locked. As a result the sag and tilt of the bottom step continued, thereby causing the anchor rod to be subjected to unusual and unnecessary stresses at its weakest point. Finally, when the railing was welded into its broken upper collar the hole caused by the break was not completely filled. A sizable opening remained on the upper side of the collar through which rain water could and did enter. It would be caught by the interior of the pipe railing and conducted into the lower right newel. This failure to seal the opening permitted the railing to act as a conduit of water into the newel which held the sensitive anchor rod. These inadequacies of repair, by permitting the processes of oxidation to waste the substance of the new anchor rod so that it rusted through at the very place of the old break, led to the fall of the plaintiff Helen Hanna on May 2, 1949.

The opening statement charged that the defendant Gichner by reason of the shortcomings of its repairs created an inherently dangerous condition which was not apparent to the untrained and which imperiled the safety of those having occasion to use the railing in reliance upon its strength and security. The defendant Fletcher, the landlord, was charged with liability for creating an unsafe condition upon leased premises.

I. We are faced initially with the problem of the statute of limitations.

231 F.2d 472

The applicable provision of our Code prescribes the period of limitations as

"* * * three years from the time when the right to maintain any such action shall have accrued. * * *" § 12-201, D.C.Code 1951.

Defendants contend under this provision that the three years began to run in 1942 when the repairs were made, and since the suit was not filed until December 28, 1950, it was barred. Plaintiffs on the other hand contend that the "right to maintain" the action did not accrue until the accident resulting in the injuries occurred on May 2, 1949, and that the suit, filed within three years thereafter, was timely. We agree. The Code is controlling. The action against Gichner plainly is based on negligence, sounds in tort, and did not accrue until injury resulted from the alleged negligence. Poole v. Terminix Co., 91 U.S.App.D.C. 287, 200 F.2d 746, is not apposite; it was an action for property damages due to breach of an implied warranty to do a workmanlike job. There the suit would have been timely if the limitations period were measured from the time the damage was discovered. The court held, however, that the suit was barred because the cause of action accrued when the warranty was breached, more than three years before the action was filed.² The policy of the law to bring repose was given effect. Here, however, the alleged negligence did not ripen into a cause of action until Mrs. Hanna was injured. We cannot shorten the time the Code allows by adding a provision that the personal injury essential to the accrual of the cause of action must occur...