Jones v. Houston Aristocrat Apartments, Ltd., 17054

• Decision Date: 18 May 1978
• Docket Number: No. 17054,17054
• Citation: 572 S.W.2d 1
• Parties: Alberta JONES, Appellant, v. HOUSTON ARISTOCRAT APARTMENTS, LTD., Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 1

572 S.W.2d 1

Alberta JONES, Appellant, v. HOUSTON ARISTOCRAT APARTMENTS, LTD., Appellee.

No. 17054.

Court of Civil Appeals of Texas, Houston (1st Dist.).

May 18, 1978.

Rehearing Denied June 22, 1978.

David J. Nagle, Houston, for appellant.

Kain & Reedy, John O. Kain, Houston, for appellee.

COLEMAN, Chief Justice.

This is a suit for damages for personal injuries sustained in a fall by the lessee of an apartment in a multiple unit housing project. After a trial to a jury a judgment was entered for the lessor notwithstanding the verdict. The judgment will be reversed.

Alberta Jones and her husband, Joe Jones, rented an apartment in the project known as Aristocrat Apartments from Houston Aristocrat Apartments, Ltd., under a written lease agreement. Del Farris executed the lease agreement as the Assistant Manager of Houston Aristocrat Apartments, Ltd. The lessor has a contract with the Secretary of Housing and Urban Development acting through the Federal Housing Commissioner whereby the Commissioner makes interest reduction payments to afford subsidized housing to the tenants in this project.

Prior to renting the apartment Alberta Jones accompanied by Del Farris inspected the apartment. She discovered a depression in the flooring which Alberta described in her testimony as a "hole in the floor." She testified that it was large enough for "your foot to fit in" and that Del Farris placed her foot in the depression on that occasion. Plaintiff testified that the hole was about five or six inches long. Arthur Shirley, a maintenance man at the project, testified that the "sink" in the floor was about two or two and a half feet in diameter.

On the 21st day of June 1974 a fire broke out in the electric fan located in the bathroom of the apartment. While Mrs. Jones was running to the telephone to call the fire department she stepped in the hole and broke her foot. This suit resulted.

In response to special issues the jury found that Del Farris told Alberta Jones the depression in the floor would be repaired by defendant, but that there was no agreement between Del Farris and Alberta Jones that the condition of the floor would be repaired before the lease was signed. The jury found that after February 17, 1974 there was an agreement between Del Farris and Alberta Jones that the floor would be repaired by the defendant; that Del Farris had the authority to bind the defendant in connection with the repair of the condition of the floor; that the failure of the defendant to repair the condition of the floor was negligence; that the negligence was a proximate cause of the occurrence in question; that Alberta Jones was not negligent in stepping into the depression in the floor; and that she suffered damage in the amount of $5,500.00.

The lease agreement provided that the tenant would repair damage caused by his act at his own expense. It authorized the landlord to enter the premises for the purpose of making reasonable inspections and repairs. Paragraph 12 reads:

"The TENANT, by the execution of this agreement admits that the dwelling unit described herein has been inspected by him and meets with his approval. The TENANT acknowledges hereby that said premises have been satisfactorily completed, and that the LANDLORD will not be required to repaint, replaster, or otherwise perform any other work, labor, or service which it has already performed for the TENANT. The TENANT admits that the premises are in a tenantable condition, and agrees that at the end of the occupancy hereunder to deliver up and surrender said premises to the LANDLORD in as good condition as when received, reasonable wear and tear excepted."

The contract also provides "No alteration, addition, or improvements shall be made in or to the premises without the prior consent of the LANDLORD in writing."

It is well settled that where a landlord retains possession or control of a portion of the leased premises the landlord is charged with the duty of ordinary care in maintaining the portion retained so as not to damage the tenant. Brown v. Frontier Theatres, Inc., 369 S.W.2d 299 (Tex.1963); Lang v. Henderson, 215 S.W.2d 585 (Tex.1948). This rule has been applied in a case where a tenant suffered water damage by reason of a leaky roof and stopped up drain pipes. Archibald v. Fidelity Title & Trust Co. 296 S.W. 680 (Tex.Civ.App. Eastland, 1927, no writ history). The same rule was applied in Denson v. Willcox, 298 S.W. 534 (Tex.Com.App.1927), a case in which a tenant suffered damage by reason of the collapse of a partition wall. Ther...