Jackson v. Amador

• Decision Date: 28 September 1934
• Docket Number: No. 1316.,1316.
• Citation: 75 S.W.2d 892
• Parties: JACKSON et al. v. AMADOR.
• Court: Texas Court of Appeals

75 S.W.2d 892

JACKSON et al. v. AMADOR.

No. 1316.

Court of Civil Appeals of Texas. Eastland.

September 28, 1934.

Rehearing Denied November 2, 1934.

Appeal from District Court, Wichita County; P. A. Martin, Judge.

Suit by Mike Amador against J. L. Jackson, Charles Umsted, and others. From a judgment for plaintiff, named defendants appeal.

Affirmed in part and reversed and rendered in part.

Carrigan, Hoffman & Carrigan and Bonner, King & Dawson, all of Wichita Falls, for appellants.

J. Earle Kuntz, of Wichita Falls, and James W. Harvey, of Archer City, for appellee.

HICKMAN, Chief Justice.

Appellee, Mike Amador, instituted this suit against J. L. Jackson, Charles Umsted, and William Levine for damages for personal injuries. Umsted operated a general merchandise store in a building leased from Jackson. While walking down the aisle of said store, and as a customer thereof, appellee stuck several large splinters in his foot, which resulted in his sustaining substantial injuries. William Levine was joined as a party defendant under allegations that he was one of the owners of the business. It was developed upon the trial that he owned no interest therein, and the court peremptorily instructed a verdict in his favor. No exception is presented to that ruling.

The case, as between appellee and the other defendants, was submitted to the jury on special issues, and, upon the verdict, judgment was rendered for appellee against both of them, jointly and severally, for the sum of $620.83, from which judgment each has appealed.

We shall first consider the appeal of the landlord, Jackson. The tenant, Umsted, in his answer, pleaded over against Jackson alleging that he covenanted as a part of the consideration for the lease contract that he would repair the floor, and prayed that, should he, Umsted, be held liable in the action of appellee, he have judgment over against his codefendant Jackson to the full extent of such liability. Jackson denied having made this covenant, and the evidence raised an issue of fact with reference thereto. This issue was submitted to the jury and was resolved by it in favor of Jackson. He then made a motion for judgment in his favor, which motion was by the court overruled and judgment entered against him and his tenant, jointly and severally, for the amount of damages found by the jury to have been sustained by appellee.

Conflicts exist in the authorities as to whether members of a tenant's family, his employees, and invitees can maintain an action ex delicto against a landlord for his breach of covenant with his tenant to make repairs. It would appear that our state is committed to what is sometimes termed the minority rule, allowing recovery in actions of that nature. See Ross v. Haner (Tex. Com. App.) 258 S. W. 1036; Pollack v. Perry (Tex. Civ. App.) 217 S. W. 967. But, that question is not before us for decision, for the jury found that no covenant to repair was made by the landlord. Our question is this: Does the mere relationship of landlord and tenant create a duty on the part of the landlord to repair the leased premises? It is a rule of general acceptation that no such duty is created by that relationship. The tenant takes the premises as he finds them, and there is no implied covenant on the part of the landlord that the premises are tenantable, or reasonably suitable for occupation. An invitee of a tenant enters the premises under the tenant's title, and has no greater right against the landlord than the tenant himself would have. The duty to repair and keep in repair, in the absence of a covenant to the contrary, rests upon him who has rightful possession. Marshall v. Heard, 59 Tex. 266; Perez v. Rabaud, 76 Tex. 191, 13 S. W. 177, 7 L. R. A. 620; Texas P. Ry. Co. v. Mangum, 68 Tex. 342, 4 S. W. 617; Miller & Bro. v. Nigro (Tex. Civ. App.) 230 S. W. 511; Ross v. Haner (Tex. Com. App.) 258 S. W. 1036; Archibald v. Fidelity Title & Trust Co. (Tex. Civ. App.) 296 S. W. 680; 36 C. J., p. 204, § 874 et seq.; 27 Tex. Jur., p. 346, § 205.

It is contended by appellee that the judgment against the landlord should be upheld on the theory that the dangerous condition of the floor amounted to a nuisance existing on the premises at the time of the letting. We cannot uphold this contention for two reasons. (1) This condition did not constitute a nuisance within the meaning of that term as used in those cases recognizing an exception to the general rule of the landlord's liability. (2) No such theory was pleaded or submitted in the court below. The landlord's duty was assumed in the pleadings and the court's charge, and the issue submitted was whether he exercised ordinary care to see that the floor was in a reasonably safe condition. Under our view, the trial court erred in overruling the landlord's (Jackson's) motion for judgment upon the verdict. That portion of the judgment should therefore be reversed and rendered in said appellant's favor.

The appellant Umsted presents eight assignments of error, which will be considered in their order.

The first complains of the refusal of the trial court to define the term "burden of proof" as used in the charge. The court did not err in this particular, and the assignment is overruled. Stine Oil & Gas Co. v. English (Tex. Civ. App.) 185 S. W. 1009; Karotkin Furniture Co. v. Decker (Tex. Com. App.) 50 S.W.(2d) 795.

The question presented in the second assignment arose in this manner: The court in his charge gave the jury the usual instructions to guide them in estimating the amount of damages. By these instructions one of the elements to be considered was appellee's medical expenses, if any. To this charge appellant objected because "the jury is permitted to take into account in awarding the plaintiff damages, items of damage which are not supported either by the pleadings or by the proof." The question sought to be presented by the assignment is that the item of medical expenses was defectively pleaded and insufficiently established by the proof. The objection made to the charge was too general to present this question. The court received no enlightenment by an objection which merely stated that the jury was permitted to take into account "items of damage" which were not supported. It is not contended that there was but one item unsupported. Objection should have been lodged against the inclusion of that particular item. On last submission day we overruled a motion for rehearing in the case of Panhandle & S. F. Ry. Co. v. Brown (Tex. Civ. App.) 74 S.W.(2d) 531, in which similar general objections were held to be insufficient. The statute (article 2185, R. S. 1925) requiring that objections shall be presented to the court before the charge is read to the jury is a...