Jacobs v. Mutual Mortg. & Inv. Co.
| Decision Date | 20 April 1966 |
| Docket Number | No. 39557,39557 |
| Citation | 6 Ohio St.2d 92,35 O.O.2d 123,216 N.E.2d 49 |
| Parties | , 35 O.O.2d 123 JACOBS, Appellant, v. MUTUAL MORTGAGE AND INVESTMENT CO., Appellee. |
| Court | Ohio Supreme Court |
Syllabus by the Court
Whoever undertakes to manage real property pursuant to a contract for a fixed period terminable by the owner only upon a bona fide sale of the property and, under such contract, accepts exclusive management and control of the premises and has power and authority to select and dispossess all tenants, rent at stipulated rents any part of the premises, execute and enforce all leases, hire, pay, control and discharge all employees with respect to the premises, and make all ordinary repairs, all without control by the owner, has sufficient possession and control of a hallway of such premises for the common use of all tenants, and the carpeting therein, to be liable to a tenant of the premises for injuries arising from a defect in such carpeting which ordinary repairs could have corrected.
Beatrice Jacobs, appellant herein, commenced this action in the Court of Common Pleas of Cuyahoga County against Mutual Mortgage and Investment Company, appellee herein, to recover for personal injuries which she sustained in the hallway of an apartment house in which she was a tenant when she caught her foot in a tear in the carpeting and fell to the floor.
The defendant was the manager of the premises for the owner under a written management contract.* At the trial there was evidence that prior to the accident plaintiff had reported the tear in the carpeting several times to the custodian, who was hired by defendant. The jury returned a verdict for plaintiff in the amount of $15,000. The trial court ordered a remittitur of $4,500, which was accepted, and granted judgment in favor of plaintiff in the amount of $10,500.
Upon appeal, the Court of Appeals for Cuyahoga County reversed the judgment, holding that under the property management contract, defendant, as a matter of law, was not in complete and exclusive control of the premises and, therefore, was not liable to the plaintiff. That court did not pass upon defendant's other assignments of error in view of its finding.
Dudnik, Komito, Nurenberg, Plevin, Dempsey & Jacobson and Robert M. Dudnik, Cleveland, for appellant.
Arter, Hadden, Wycoff & Van Duzer and Robert Weh, Cleveland, for appellee.
In this appeal, there is no dispute that plaintiff was injured, or that the proximate cause of her injuries was the negligence of the person in possession and control of the premises in failing to maintain the carpeting in the hallway in a reasonably safe condition so that such person is responsible at law to the plaintiff for her injuries. The single question, therefore, is: Was the defendant in sufficient control of the premises so as to fix liability upon it?
The answer is to be found solely within the terms of the contract between defendant and the owner. The conclusion of the Court of Appeals that that contract did not invest the defendant with exclusive control is not without merit. However, we reach the opposite result. We are persuaded that the contract has every indicia of a lease and that the defendant is in the posture of a lessee with respect to the events giving rise to this action.
It accepted 'exclusive management and control of' the premises for a period determinable by the owner only 'in the event of a bona fide sale of, and the recording of a deed of transfer of title to the premises.' The most compelling feature of the contract leading to our conclusion is that, in addition to the usual authority of a leasing agent, defendant accepted power and authority 'to make and execute leases' at stipulated rentals with tenants selected by it and 'to prosecute any and all legal proceedings for the recovery of possession of any part of the leased premises and/or for the recovery of rentals due therefor and to settle, compromise and adjust suits, claims and disputes arising out of such matters.' (Emphasis supplied.)
Defendant also had authority 'to hire, manage, control, pay and discharge all managers, janitors and other employees.' There is no indication that the owner retained any right of control or direction over any of these important activities. Defendant had, as Judge Taft (now Chief Justice) said in Cooper v. Roose, 151 Ohio St. 316, at page 323, 85 N.E.2d 545, 549, * * *' See, also, Davies, a Minor, v. Kelley, 112 Ohio St. 122, 146 N.E. 888.
Furthermore, it is not urged that the defective carpeting involved an emergency repair 'necessary and incident to the negotiation of a lease, or the rental of any part of the premises,' or a permanent replacement or improvement. The defect here called for an ordinary repair and defendant had full power and authority to make 'all ordinary repairs' without any financial restriction. Under paragraph 2(b), if sufficient funds were not on hand to the credit of the owner, the owner was required promptly to pay the deficiit on request of defendant.
Finally, defendant has advanced no substantial reason to support its contention that it had no duty to repair the carpeting. The word, 'duty,' is employed in the language of the contract only in paragraph 2(c) with reference to the degree of compliance required of defendant. But duty is implicit in every feature of the arrangement, which is 'instinct with obligation.' Absent duty, neither party could derive any benefit therefrom. The owner's investment would not be conserved and the defendant would receive no compensation.
There are, of course, other aspects of the relationship, responsibility for which is shared by the owner and the defendant. But those responsibilities do not pertain to nor could they have affected the occurrence with which this action is concerned. And they are over-balanced by those features by which defendant possessed full power and authority as to this defect to the exclusion of the owner, that is, to admit or reject plaintiff or any other person from the hallway in which the defect occurred and completely to provide for the maintenance of that hallway in the safe condition in which it was presumably received from the owner, including the correction of that defect.
The rule that a writing will be construed must strongly against the party responsible for its language may well apply here, where both the defendant and the owner have provided each other with an arguable defense to an action against either by a third party. Justice will not be served by permitting either party to the contract to derive a procedural advantage from their contractual relationship containing elements fortuitous to both over one aggrieved by a matter concerning his tenancy or by the condition of the premises, particularly since the owner bears the final financial responsibility under an indemnity clause (paragraph 3).
The judgment of the Court of Appeals is, therefore, reversed and the cause is remanded to that court for consideration of other alleged errors not previously considered. In so doing, we disturb nothing in the law of agency or of landlord and tenant.
Judgment reversed.
The management agreement between the owner and the defendant management company is the only evidence establishing the relationship between defendant and the property involved. The agreement clearly establishes that defendant was simply an agent of the owner and authorized to act for the owner in certain limited areas specifically detailed in the agreement. It clearly negates the contention that the defendant was in exclusive possession and control of the premises, and, hence, the management company is not liable in tort to the tenant.
Additionally, the agreement does not obligate the defendant to make any repairs whatsoever. The property management agreement merely gives defendant the 'power and authority' to make certain 'ordinary' repairs, and a failure to exercise a power, not a duty, does not amount to a breach of contract.
In Ripple v. Mahoning National Bank (1944), 143 Ohio St. 614, 56...
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