Newman v. Early
Decision Date | 14 October 1940 |
Citation | 10 S.E.2d. 885 |
Court | Virginia Supreme Court |
Parties | NEWMAN. v. EARLY. |
could not be held liable for injuries sustained by the tenant in a fall caused by sagging of the sill.
Error to Corporation Court of Charlottesville; A. D. Dabney, Judge.
Action by Hazel Almond Newman against John E. Early, Jr., as administrator of the estate of John E. Early, deceased, for injury sustained as a result of the alleged failure of the decedent to repair porch of a house in which the plaintiff was tenant. A judgment for the defendant and plaintiff brings error.
Affirmed.
Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, EG-GLESTON, and SPRATLEY, JJ.
Walker & Taylor, of Charlottesville, and T. W. Messick, of Roanoke, for plaintiff in error.
Homer Richey and Walsh & Waddell, all of Charlottesville, for defendant in error.
This is an action for personal injuries instituted by Hazel Almond Newman, wife of the tenant, against the estate of John E. Early, the landlord. The trial court, on motion of defendant, struck the evidence and, on the verdict returned, entered judgment for defendant. This ruling of the trial court is the only question raised in plaintiff's one assignment of error.
In May, 1936, Dr. John E. Early, for and in consideration of $18 a month, demised a house and lot in Charlottesville to W. P. Newman, husband of plaintiff. Later the landlord, at the request of the tenant, repaired the back porch and a hot water tank. Dr. Early, who had only one leg, usually came to the front gate, which was about 20 feet from the front of the house, where Mrs. Newman met and paid him the rent from month to month. In March and again in April, 1938, Mrs. Newman told Dr. Early that the post on the southwest corner of the front porch had decayed and was loose at the bottom. Dr. Early promised, on each of these occasions, to repair the post. However, no repairs were made prior to June 1, 1938. On that date Mrs. Newman, in response to a call of her next door neighbor, walked across the porch, and, while standing on it a few feet from the decayed post, the sill supporting the porch flooring dropped several inches. This unexpected drop threw Mrs. Newman off balance. She caught the swinging post but, as it broke loose from the fastening at the top, it did not check her fall to the ground. She averred that, as a result of this accident, she sustained injuries to her spine, hips and other parts of her body, for which she seeks compensation. Dr. Early died sometime later, hence this action was brought against his personal representative.
Two legal problems are involved. The first is whether the landlord is liable in tort to plaintiff, a member of tenant's family, for personal injuries suffered by a defective sill to the porch on account of a promise to repair a post supporting the roof over the porch. The second is whether plaintiff was guilty of contributory negligence as a matter of law.
The first problem includes the question --Does a landlord's agreement to repair impose upon him liability in tort in an action by the tenant, or others lawfully on the land in the right of the tenant. On this question the authorities are divided. A majority of the courts hold that the failure of the landlord to fulfill his promise to repair property in possession and control of the tenant does not impose upon him any liability in tort. See Jacobson v. Lea-venthal, 128 Me. 424, 148 A. 281, 68 A.L.R. 1192; Eberle v. Productive &c. Association, 119 N.J.L. 393, 196 A. 666; Hunkins v. Amoskeag Mfg. Co., 86 N.H. 356, 169 A. 3; Mercer v. Williams, 210 N.C. 456, 187 S.E. 556; Berkowitz v. Winston, 128 Ohio St. 611, 193 N.E. 343; Chelefou v. Springfield Inst, for Savings, 297 Mass. 236, 8 N.E.2d 769; Cullings v. Goetz, 256 N.Y. 287, 176 N.E. 397, 398; Norris v. Walker, 232 Mo. App. 645, 110 S.W.2d 404; Harris v. Lewis-town Trust Co., 326 Pa. 145, 191 A. 34, 110 A.L.R. 749; and Timmons v. Williams Wood Products Corporation, 164 S.C. 361, 162 S.E. 329. Plaintiff concedes the majority rule to be as stated, but contends that the minority rule, to the contrary, is supported by better reasons. See Dean v. Hershowitz, 119 Conn. 398, 177 A. 262. As we view the facts and as they appear from plaintiff's own testimony, she is not entitled to recover under either rule.
The sill or stringer was underneath the porch floor with facial boards over the side and end. Its decayed condition could have been discovered only by removing the floor and boards or crawling beneaththe porch. Ordinary inspection would not have disclosed its weakened condition even if the landlord owed the tenant the duty to inspect. Mr. Newman had attempted to prevent the post from swinging by driving a small wooden wedge between the bottom of it and the perch floor. In doing this he did not observe the rottening sill. The tenant did not think it was...
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11.2 Residential Leases
...and Tenant § 32.[365] Va. Code § 55-248.17(B).[366] Id.[367] Va. Code § 55-248.17(C).[368] See Newman v. Early, 176 Va. 263, 267, 10 S.E.2d 885, 887 (1940).[369] Va. Code § 55-248.18(C).[370] Va. Code § 55-248.18(D).[371] Id.[372] Va. Code § 55-248.18(E).[373] Va. Code § 55-248.10:1.[374] V......
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11.2 Residential Leases
...and Tenant § 32.[7595] Va. Code § 55.1-1228(B).[7596] Id.[7597] Va. Code § 55.1-1228(C).[7598] See Newman v. Early, 176 Va. 263, 267, 10 S.E.2d 885, 887 (1940).[7599] Va. Code § 55.1-1229(A)(4).[7600] Id.[7601] Va. Code § 55.1-1229(C).[7602] Va. Code § 55.1-1229(A)(3).[7603] Va. Code § 55.1......