Lang v. Henderson, A-1832.

• Citation: 215 S.W.2d 585
• Decision Date: 01 December 1948
• Docket Number: No. A-1832.,A-1832.
• Parties: LANG v. HENDERSON.
• Court: Supreme Court of Texas

Page 585

215 S.W.2d 585

LANG v. HENDERSON.

No. A-1832.

Supreme Court of Texas.

December 1, 1948.

Rehearing Denied December 31, 1948.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by Glen Lang, Jr., against Corenne Henderson for injuries and property damage resulting from fire in apartment building owned by defendant. Judgment for defendant was affirmed by the Court of Civil Appeals, 211 S.W.2d 972, and plaintiff brings error.

Judgments of Court of Civil Appeals and district court reversed and cause remanded to district court.

S. S. Barbaria and Henry D. Akin, both of Dallas, for petitioner.

Eades & Eades, of Dallas, for respondent.

SMEDLEY, Justice.

Petitioner, tenant, sued respondent, landlord, for damages on account of injuries suffered by petitioner's wife and loss of personal property as the result of a fire in the rented premises, a small apartment in the City of Dallas. The fire was caused by a defective gas water heater. After petitioner introduced his evidence and rested the district court granted respondent's motion for an instructed verdict. The Court of Civil Appeals affirmed the trial court's judgment, holding that petitioner was guilty of contributory negligence as a matter of law. Associate Justice Looney, dissenting, expressed the opinion that on the issue of contributory negligence a question of fact was raised that should have been submitted to the jury. Tex.Civ.App., 211 S.W.2d 972.

Petitioner and his wife occupied the apartment of three rooms, bedroom, kitchen and bathroom, from February 23, 1946, until December 20, 1946, when the fire occurred. They paid $7.50 a week as rent, with all utilities furnished, including lights, gas and water. One heater supplied hot water for all of the eight apartments in the building. The heater was in a closet or alcove about three feet wide and four feet deep in the kitchen of petitioner's apartment, with lattice work in front of the alcove. There was one entrance to the apartment into the bedroom and a door between the bedroom and the kitchen. Respondent listed the apartments with OP A as utility apartments, agreeing for a stipulated rental to furnish all utilities, including hot water. She had access to the water heater, having retained a key to petitioner's apartment.

Petitioner and his wife first smelled gas escaping from the heater about a month and a half or two months before the fire occurred. They immediately reported the fact to respondent, who promised to have a man come to inspect and repair the heater. She did not do so. Some time later they again requested her to repair the heater; again she promised and again she failed to perform the promise. Thereafter, about December 4, petitioner's wife called the gas company. They sent a man who cut the gas off from the heater. On the same day, however, the gas was turned on again; by whom neither petitioner nor his wife knew. After the gas had been cut off respondent came to the apartment, took down the lattice work, inspected the heater and said to petitioner's wife: "It is only fumes, that can be fixed". And said further: "You kids have certainly fixed me". She promised she would return in a short time. Petitioner's wife went to town, leaving a note to tell respondent she had left the door unlocked so that a plumber could come in to repair the heater. When she returned she found two or three of her cooking utensils in the sink smudged with smut, fingerprints on the woodwork, and traces of soot and water on the linoleum. She did not see respondent again until after the fire. Gas or gas fumes continued to come from the heater, and petitioner again complained to respondent on about December 10. Respondent said she would see about it, but she did not. Petitioner and his wife slept with the door closed between the bedroom and the kitchen and left the window in the kitchen up so that gas could escape. The fumes from the gas were worse for three or four days before the fire than they were when petitioner first noticed them a month and a half earlier

On the early morning of December 20 petitioner and his wife were awakened by fire in the kitchen and found that the corner of the kitchen where the heater was located was ablaze. The evidence shows or tends clearly to show that the fire was caused by the defective water heater.

The majority opinion of the Court of Civil Appeals sets out a great part of the testimony, and in holding that petitioner is barred from recovery by reason of contributory negligence established by the evidence as a matter of law, thus states its conclusion : "The law does not require a landlord to take better care of a tenant than the tenant would take of himself. So where a tenant knows, as here, of the dangerous condition of the premises for a sufficient period of time, and continues to remain as tenant and use the premises with such defective and dangerous appliances, without showing freedom from responsibility, a recovery for damages is not sustainable against the landlord even though the landlord was negligent in respect to the dangerous instrumentality causing the damage or injury, or had previously promised to make repair and failed to do so."

Associate Justice Looney dissented from the opinion of the majority of the Court of Civil Appeals on two grounds: first, that the majority did not convict petitioner of the contributory negligence alleged in respondent's answer; second, that even if the...