Jones v. Regan
| Decision Date | 15 April 1959 |
| Citation | 337 P.2d 889,169 Cal.App.2d 635 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Minnie JONES, Plaintiff, v. John REGAN and William Regan, individually, and doing business under the firm name and style of Regan Farms, defendants. Minnie JONES, Plaintiff and Appellant, v. John REGAN and William Regan, individually, and doing business under the firm name and style of Regan Farms, Defendants and Respondents. Civ. 5686. |
Morris B. Chain, Milton M. Younger, Bakersfield, for appellant.
Baker, Palmer, Wall & Raymond, Bakersfield, for respondents.
This is an action for damages for personal injuries alleged to have been suffered from a fall caused by a defective porch floor. Judgment was for defendants and plaintiff appeals.
Plaintiff's husband was employed by defendants in 1952 and as a part of his employment was furnished a home for himself and family. The original home was supplanted a few months later in the same year by another home in which one of the defendants had lived up to that time. Plaintiff lived therein with her husband and family about four years before the accident complained of occurred. She testified that she stepped onto the porch; that her heel broke through the floor; and that she was thereby caused to trip and fall, suffering injury as a proximate result of the alleged defective condition of the floor.
Plaintiff's evidence indicates that the porch floor condition, which she claimed caused her heel to break through the floor, was known to her and her husband during all of said four years; that she or her husband called this condition to the attention of defendants at least six times, one of which times was just prior to the time plaintiff and her husband moved into it. The evidence on whether or not defendants convenanted to keep the house and porch in repair is in conflict, and there is also some conflict on whether any promise by defendants to repair, if made at all, was made after occupancy and as a mere gratuity without any new consideration.
In addition to the usual standard instructions on witnesses, inferences, presumptions, negligence, ordinary care, contributory negligence, proximate cause, burden of proof, the jury's prerogative to decide all facts and weigh all evidence, elements of damage, and jury room procedure, the court also gave the following instruction:
'Your verdict, when you reach it, will be merely for or against the plaintiff's contentions, and if favorable to her will specify the amount of her damages. However, in order to reach your decision you will take up the questions presented to you in the order I will indicate.
'First, you must decide whether the defendants, the landlord, owed any duty of care to the plaintiff. This depends on whether the defendants undertook and agreed to assume the responsibility to repair, which is a matter of contract. If you should decide that there was no such contract, your verdict would be for the defendants, if you find under these instructions and on the evidence you have heard that the defendants expressly and unequivocally bound themselves to make repairs, and that this included repairs to the porch or stoop, thus assuming a legal duty, you will next determine whether that duty has been breached by the defendants. The questions here to be determined lie in the legal field of negligence or contributory negligence and proximate cause. If the defendants assumed the duty but were not negligent in the performance of it, or if their negligence was not a proximate cause of plaintiff's injury, your verdict will be in their favor. If you find that the defendants owed the duty and were negligent, proximately causing the injury, and the plaintiff was not contributorily negligent, your next duty will be to fix the amount of plaintiff's damages.
'In considering the question as to whether or not the defendants were legally bound to make repairs, you will have in mind that such liability of a landlord exists only in case of an express covenant or promise by him to make the repairs, which promise is included in the lease or otherwise supported by consideration. The evidence must fairly show the existence of a definite and explicit agreement between the parties, not merely an assumption by the tenant, that the landlord will make the repairs; and this agreement must either be a part of the original leasing agreement, or be supported by other consideration--that is, if the landlord's promise was not included in the original lease, the tenant must have given some thing or promise of value in return for the landlord's special promise to repair. Legally this could occur at a point of time after the original agreement to lease. The landlord's agreement need not be in writing in order to be binding.
'In the absence of such an agreement as I have described, the landlord has no duty to repair. Indeed, in the absence of consideration, the mere failure of a landlord to make repairs, even after a promise to do so, does not render the landlord liable for injury sustained by the tenant or a member of the tenant's household.
'For the purpose of this case the plaintiff, Mrs. Jones, may be considered a tenant and entitled to the benefit of any rights against the Regans that her husband may be found to have had.
'I have referred to the term 'express covenant' or
During the jury's deliberations it returned to the court and requested the rereading of the foregoing instructions. This was done by the court except the last paragraph above set forth. The court then said: 'And I defined the word . Thereafter the jury again retired and later returned a verdict for defendants.
Plaintiff states the questions on appeal are first, whether it was prejudicial error for the court to give the above quoted instruction formulated by the court,...
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