Lommori v. Milner Hotels, Inc.

• Decision Date: 22 October 1957
• Docket Number: No. 6230,6230
• Parties: Ansano LOMMORI, Aquilina Lommori, Joseph Sei, and Amy Sei, Appellants, v. MILNER HOTELS, Inc., a Delaware Corporation, Appellee.
• Court: New Mexico Supreme Court

Page 949

319 P.2d 949

63 N.M. 342

Ansano LOMMORI, Aquilina Lommori, Joseph Sei, and Amy Sei, Appellants, v. MILNER HOTELS, Inc., a Delaware Corporation, Appellee.

No. 6230.

Supreme Court of New Mexico.

Oct. 22, 1957.

Rehearing Denied Jan. 15, 1958.

Simms, Modrall, Seymour, Sperling & Roehl, Thomas J. Smiley, Albuquerque, for appellants.

Rodey, Dickason, Sloan, Akin & Robb, James C. Ritchie, Albuquerque, for appellee.

McGHEE, Justice.

Appellants bring for review a directed verdict and judgment against them on cross-claims arising out of an action for damages in tort.

Lawrence Sanchez filed a complaint for personal injuries on April 22, 1954, in the district court for Bernalillo County. As amended, his complaint asked for damages in the amount of $147,117.72 from the Milner Hotels, Inc., lessee, and Ansano Lommori, Aquilina Lommori, Joseph Sei and Amy Sei, hereafter referred to as lessors. He alleged that while walking past the Milner Hotel a pane of glass fell from an upper story window, causing his injuries.

The Milner Hotels, Inc., hereafter referred to as lessee, cross-claimed for recovery from the lessors for any sums it might be found liable to the plaintiff, alleging a covenant in the lease requiring lessors to maintain the roof and exterior of the demised premises. The lessors then filed their cross-claim against the lessee averring that the tenant in possession was solely liable for injuries sustained by plaintiff, that lease covenants required the lessee to keep and maintain the peremises in good order and repair, and to save the lessors harmless from any liability arising out of the occupancy or use of the premises.

The claim of plaintiff Sanchez was subsequently settled by defendants, lessee and lessors, whereby the plaintiff was paid $18,000, with the defendants each paying $9,000 of this sum. It was further stipulated that neither defendant would question the reasonableness of the settlement made with Sanchez, and that neither would assert as a defense to the cross-claim of the other defendant, that he was not liable to the plaintiff.

The case was tried to a jury, but the court directed a verdict for lessee, dismissed the cross-claim of lessors and awarded $9,000 on the cross-claim of lessee.

From the facts in the case it was established that the injury involved was caused by a falling pane of glass from a window on the third floor of the hotel. The pane fell intact, glazier points, or barbs, which held it in place were pushed outward and putty from the sash was found to be old and brittle with paint behind the putty which normally would have been against the glass. Window frames and sashes of the building had been repainted in 1949 by lessors, with reputtying ordered where necessary. The lease in question provides:

'The Lessor shall have the right from time to time during the term of this lease to enter into and upon the leased premises for the purposes of examining the same and making such alterations, repairs and doing such other things to the premises or equipment as may become necessary or advisable.

'The Lessor agrees to maintain the roof and exterior of the demised premises in good condition and repair.'

In directing a verdict for lessee the court apparently concluded as a matter of law that liability would fall on the lessors under the covenant to repair if the defective widow was part of the exteriof of the building. The jury was directed as follows:

'* * * the Court finally decided the case for you, and held that none of the facts presented in the case would affect the terms of the lease, which provided that the owner is responsible for the exterior of the building, and that the cited cases hold that windows and window frames are part of the exterior.'

Lessors attack this ruling on the basis that the covenant to repair is ambiguous in that the defective window could be considered interior as well as exterior, a question that should be left to the jury, and that there was sufficient evidence to raise an issue of fact for the jury as to whether the lessee exercised such control of the premises as to make him liable.

There is no doubt but that the defective putty holding the pane of glass in place was exterior. While window glass could be considered both interior and exterior, the putty was wholly exterior. This problem was considered in Marzotto v. Gay Garment Co., 1951, 11 N.J.Super. 368, 78 A.2d 394, 397. There, the landlord had covenanted to make exterior repairs and the tenant interior repairs including the replacement of cracked and broken window glass. A pane of glass had fallen from a third floor window injuring plaintiff; an examination of the window less than an hour after the accident disclosed that one whole pane of glass was gone from the lower section and that there was no putty in the window. The court said:

'We agree with the court below that this owner owed a duty to the traveling public of reasonable care in the maintenance and repair of the window, because it reserved control over such part of the property by virtue of the provision of the lease concerning the making of exterior repairs and the specific provision concerning glass. * * *'

See, also, Friedl v. Lackman, 1939, 136 Ohio St. 110, 23 N.E.2d 950, and City of New Orleans v. Impastato, 1941, 198 La. 206, 3 So.2d 559, 561, where it was stated:

'* * * The word 'exterior', as applied to a building, clearly means all of the outer surfaces thereof as distinguished from its interior or the portion enclosed by the outer surfaces.'

The trial court was correct in ruling that the defective window in question was exterior and included under the covenant to repair by the lessors. If the defect had been in the glass itself, as a cracked glass, a different answer might have been called for.

Before considering the remaining argument of lessors, and in order to clarify the issue, the status of the law as to the problems involved in this case can be set forth as follows: The common law rule regarding liability for injuries to third persons places responsibility on the tenant in possession and excuses the landlord. There are some exceptions, as (1) when the landlord knows of a hidden defect and does not communicate that knowledge to the tenant, Coggins v. Gregorio, 10 Cir., 1938, 97 F.2d 948; (2) when the landlord binds himself by a covenant to repair; (3) when the landlord reserves control of part of the premises as passageways, stairs, etc., Hogsett v. Hanna, 1936, 41 N.M. 22, 63 P.2d 540; (4) when the injury is to persons off the premises in which situation the owner continues liable for ordinary negligence arising from conditions of disrepair, or dangerous activities carried on by his tenant.

We do not have a New Mexico case on the first, second and fourth exceptions.

In their first point lessors raise the exception noted in (3) above and contend that the conduct of lessee was of such nature as to raise a question of fact for the jury as to whether or not lessee had assumed control of the window repairs so as to make him liable. In support of their argument that the lessee had assumed control, it was shown in evidence that the lease provided that the lessee was to keep the premises clean and return it in good order and repair on termination of the lease; that the lessee for many years had replaced cracked and broken glass although the lease was silent as to such replacement; that the lessee had repaired a torn or broken screen on one occasion; and that the lessee had cleaned the interior of window glass and had made regular inspections of the premises. There was testimony that one of the lessors did not know of the covenant to repair in the lease, and also testimony that another of the lessors, Mr. Lommori, did know of the covenant.

Against this argument the lessee placed in evidence the terms of the lease as to the covenant to repair and the right of entry for purposes of repair and inspection by lessors; that lessors inspected the premises regularly; that the defect in the window in question was exterior; that lessors had repaired all windows of the building in 1949 by repainting and reputtying them where necessary; and that the lessee had not attempted to replace or otherwise repair the window in question prior to the injury involved.

The directed verdict rule in this jurisdiction was stated by this court in Sanchez v. Gomez, 1953, 57 N.M. 383, 259 P.2d 346, 348, as follows:

'It is now well established that before the trial court may properly remove a case from the jury it should appear that no true issues of fact have been presented, for it is a party's right to have such issues decided by the judgment of his peers under provisions of state and federal constitution. The basis for a directed verdict, therefore, is the absence of an issue for a jury to resolve. It follows that when the evidence forms an issue the right to a jury determination persists. It is to safeguard this basic right of jury determination that the rule arose, and frequently announced by the court, that when a verdict is directed because a contrary result would be without support in the evidence, the court must view the evidence in the light most favorable to the party against whom it rules; in other words, it must indulge all reasonable inferences that may be drawn from the evidence in favor of such party.'

For purposes of analysis in determining whether the record was sufficient to raise an issue of fact, four circumstances must be considered. (1) There was an express covenant requiring the lessors to repair the exterior....