Morris v. Oney

Citation32 Cal.Rptr. 88,217 Cal.App.2d 864
CourtCalifornia Court of Appeals
Decision Date03 July 1963
PartiesTroy MORRIS, Plaintiff and Appellant, v. Frank L. ONEY and Wynona Oney, etc., Defendants and Respondents. Civ. 26657.

Roger J. Pryor, Compton, for appellant.

Spray, Gould & Bowers by Daniel O. Howard, Los Angeles, for respondents.

HERNDON, Justice.

In this action plaintiff, a tenant, sought a recovery of damages from defendants, his landlords, for damages allegedly sustained by him as the result of the malfunctioning of a gas wall heater which had been installed in the leased premises.

Plaintiff appeals from the judgment entered in favor of defendants following a jury trial. We shall summarize the undisputed facts disclosed by our examination of the record. The rental unit rented and occupied by appellant and his family was one of several separate residential units built by San Antonio Builders for respondents Oney, the owners. Jack B. Stanford, a plumber, had installed a wall heater manufactured by Williams Furnace Company prior to the completion of the building in June of 1958.

The premises involved herein were first rented to other tenants by respondent owners in July of 1958. These initial tenants apparently vacated in November, 1958, for the premises had been unoccupied for a month before appellant's wife rented them unfurnished, on a month-to-month basis, on December 20, 1958. Appellant joined his family in the residence in April of 1959.

Sometime during the preceding month, i. e. in March of 1959, appellant's wife had noticed the wall heater smoking and had reported it to respondents, who caused it to be examined and adjusted. Although appellant and his wife had noticed that its flame was yellow and unusually bright, the heater operated thereafter without further difficulty until January 4, 1960, when it began to emit large quantities of smoke and soot which, according to appellant's testimony, caused the damage to his health and to his furniture and furnishings for which he sought to recover.

As the grounds upon which he seeks a reversal, appellant advances three assignments of error: (1) That the trial court erred in instructing the jury on the doctrine of assumption of risk; (2) that error was committed in the court's refusal to give an instruction on the theory of res ipsa loquitur; and (3) that error was committed in the granting of a non-suit as to appellant's cause of action based upon an alleged implied warranty of fitness.

Although we granted appellant's request to augment the record by ordering the original file transmitted to this court, the augmented record clearly shows that appellant himself foreclosed any right that he might otherwise have had to seek a reversal on the basis of his second and third assignments of error.

The reporter's transcript reveals that following various discussions on the question of the applicability of the doctrine of res ipsa loquitur in the factual context of the instant case, the trial judge indicated his decision not to give an instruction thereon, and stated his reasons therefor. At the conclusion of the court's comments, appellant's counsel stated: 'That is right. Well, I was not going to submit it, but I thought you might want to read it to see if we complied with the criticism to the Black case.' (Emphasis added.)

Thus, it appears that appellant did not in fact submit or request the instruction; therefore it is not before this court for review. "The refusing of an instruction will not be reviewed by an appellate court unless the record sets forth the requested instruction. [Citation.]" (Beane v. Los Angeles Transit Lines, 162 Cal.App.2d 58, 60, 327 P.2d 593, 594.)

Although appellant's complaint appears to have been drawn with an intention to state a cause of action for breach of warranty against the manufacturer of the heater and against respondents also, appellant's pretrial statement, which was incorporated into the pretrial order, lists appellant's contentions as follows: '[T]hat the defendants were negligent in the installation of, and the repairs of the heater, that there was a breach of implied warranty of fitness on the part of the manufacturer and that the landlords, defendants Frank L. Oney and Wynona Oney, were negligent in not properly maintaining the heater in a safe condition for their tenants.' (Emphasis added.)

A settlement prior to trial had been concluded between appellant and the manufacturer. At the close of appellant's case, the plumber, Stanford, who had installed the heater, moved for a non-suit which was granted. Appellant does not challenge that order. At the same time, respondents moved for a non-suit but their motion was denied. At this juncture there was considerable discussion regarding the question of applicability of the doctrine of implied warranty as against the respondent landlords. Although it appears that the court gave serious consideration to respondents' motion, the record definitely shows that it was denied.

A much more serious question is presented by appellant's remaining assignment of error. Appellant's case as presented to the jury, the two theories above discussed having been eliminated in the manner indicated, turned upon respondent landlords' alleged violation of former section 16905 of the Health and Safety Code. At the time of the occurrence of the operative events involved in this case, said section provided as follows: 'Every gas vent, gas water heater, or other gas appliance shall be maintained in good repair.'

The foregoing section of the Health and Safety Code undoubtedly imposed upon the landlord the duty therein stated; namely, the duty to maintain in good repair every gas vent, gas water heater, or other gas appliance in his rented premises. This follows from the fact that the section was found in Chapter 2 of Part 1 of Division 13 of the State Housing Act, which declared: 'The provisions of this part constitute minimum requirements for the protection, health, and safety of the public and of the occupants of apartment houses, hotels, and dwellings.' (Health and Saf.Code, § 15152.)

Hence, in this case, as in Ewing v. Balan, 168 Cal.App.2d 619, 622, 336 P.2d 561, 564, it is true that 'plaintiff was a member of the class for whose benefit section 16905 was enacted,' and 'the statute imposed upon * * * landlords the duty of maintaining the heater in a reasonably safe condition.' But it does not necessarily follow that the duty rests upon the landlord regardless of his knowledge or want of knowledge of a need for making a repair. The common law rule is stated as follows in 51 C.J.S. Landlord and Tenant § 371, page 1110:

'Where a landlord is obligated to make repairs during the term, actual or constructive notice of the need for repair is necessary to put him in default on his obligation, unless he agreed to repair without notice, or has actual knowledge, or reasonable opportunity to acquire knowledge, of the defect.' (See also, McNally v. Ward, 192 Cal.App.2d 871, 884, 14 Cal.Rptr. 260; Yazzolino v. Jones, 153 Cal.App.2d 626, 637, 315 P.2d 107; Farber v. Greenberg, 98 Cal.App. 675, 682, 277 P. 534; Harris v. Joffe, 28 Cal.2d 418, 424, 170 P.2d 454.)

Speaking of a landlord's covenant to repair, Professor Prosser says in his Law of Torts (2nd Ed.), page 475: 'The jurisdictions which find a tort duty usually construe the lessor's covenant, in the absence of an express provision to the contrary, to mean merely that he must repair only within a reasonable time after he has been notified of the dangerous condition, or has otherwise discovered it.'

The instant case deals with a gas wall heater in an unfurnished house rented on a monthly basis without any specific covenant concerning repairs. Exclusive right of possession was vested in the tenant and there was no implied covenant of right of entry by the landlord. He could not enter except by permission; hence, he could not make constant inspections. The tenant would first know of need of repairs and easily could give notice to the landlord. Applied to such a situation the statute (§ 16905) should be construed to carry an implied term that the landlord would be entitled to notice of need of repair, and a reasonable time within which to make it. This follows from sound rules of statutory construction.

Statutes are not presumed to alter the common law except to the extent that they expressly so provide. 'The Civil Code was not designed to embody the whole law of private and civil relations, rights, and duties; it is incomplete and partial; and, except in those instances where its language clearly and unequivocally discloses an intention to depart from, alter, or abrogate the common-law rule concerning a particular subject-matter, a section of the Code purporting to embody such doctrine or rule will be construed in the light of common-law decisions on the same subject.' (Estate of Elizalde, 182 Cal 427, 433, 188 P. 560, 562.) The rule is stated as follows in 45 Cal.Jur.2d § 116, page 625:

'Statutes must be given a reasonable and common sense construction in accordance with the apparent purpose and intention of the lawmakers--one that is practical rather than technical, and that will lead to a wise policy rather than to mischief or absurdity.' The court should consider the consequences that might flow from a particular interpretation (Estate of Ryan, 21 Cal.2d 498, 513, 133 P.2d 626), and where the language is susceptible of two different constructions general phrasing must yield to an intent which is apparent from the act itself. (...

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    • May 16, 2008
    ...negligence as alleged in the ninth cause of action (Ceriale v. Superior Court (1996) 48 Cal.App.4th 1629, 1634-1635; Morris v. Oney (1963) 217 Cal.App.2d 864, 873-874); and an open book account based upon a contract as alleged in the eleventh cause of action. (Nwosu v. Uba (2004) 122 Cal.Ap......
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    ...Elec. Ry. Co. (1935) 7 Cal.App.2d 287, 289, 46 P.2d 281.) Consideration has been given to the rule stated in Morris v. Oney (1963) 217 Cal.App.2d 864, 32 Cal.Rptr. 88, as follows: 'Where either a plaintiff or a defendant is afforded no opportunity under the instructions given, to have the j......
  • Keeler v. Superior Court
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    • California Supreme Court
    • June 12, 1970
    ... ... (Baker v. Baker (1859) 13 Cal. 87, 95--96; Morris v. Oney (1963) 217 Cal.App.2d 864, 870, 32 Cal.Rptr. 88.) This is particularly appropriate in considering the work of the first session of our ... ...
  • Lewis v. Superior Court
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    • California Court of Appeals Court of Appeals
    • January 23, 1990
    ... ... (Baker v. Baker (1859) 13 Cal. 87, 95-96; Morris v. Oney (1963) 217 Cal.App.2d 864, 870 [32 Cal.Rptr. 88].) This is particularly appropriate in considering the work of the first session of our ... ...
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