Posnanski v. Hood

• Decision Date: 03 March 1970
• Docket Number: No. 79,79
• Citation: 174 N.W.2d 528,46 Wis.2d 172
• Parties: Mary POSNANSKI, Respondent, v. Robert HOOD, Appellant.
• Court: Wisconsin Supreme Court

Page 528

174 N.W.2d 528

46 Wis.2d 172

Mary POSNANSKI, Respondent, v. Robert HOOD, Appellant.

No. 79.

Supreme Court of Wisconsin.

March 3, 1970.

This is an action for back rent brought by plaintiff-respondent. Mary Posnanski (hereinafter plaintiff), against defendant-appellant, Robert Hood (hereinafter defendant). The county court of Milwaukee county, ARNE H. WICKLUND, County Judge, of Iron county, presiding, entered judgment for the plaintiff. Defendant appealed to the circuit court, which modified the amount of the judgment and affirmed the judgment of the county court as so modified. Defendant has appealed from the judgment of the circuit court and on this appeal the amount of the judgment is not at issue. The trial was before the court.

Louis J. Mestre, Milwaukee, for appellant.

Usow, Teper & Weiss, Milwaukee, Beverly A. Monson, Milwaukee, of counsel, for respondent.

James A. Walrath, Milwaukee, for Milwaukee Tenants Union, amicus curiae.

CONNOR T. HANSEN, Justice.

The defendant occupied the premises of the plaintiff on a month-to-month oral lease and vacated them after becoming arrear in several months' rent payments. When the plaintiff commenced action to collect the attearage, the defendant pled the following affirmative defense in his answer:

'5. That the lease sued upon by the plaintiff is illegal and contrary to public policy and is therefore void and unenforceable.'

This affirmative defense is predicated upon the defendant's assertion that there were certain defective conditions in the housing accommodations which violated the Milwaukee Housing Code, which in turn obviated any obligation of the defendant to pay rent while these violations existed. Evidence premised on this defense was rejected by the trial court.

The issue on this appeal is whether the trial court committed error in not allowing defendant to establish, as an affirmative defense, violations of the Milwaukee Housing Code, which defendant argues rendered the oral lease agreement between the parties null and void.

At the trial, the defendant testified he vacated the premises because plaintiff did not repair the kitchen and bathroom ceilings where plaster had fallen down, an oil leak in the furnace which rendered it inoperable, and the locks on the doors. Defendant also complained to plaintiff about a broken window in the bathroom; however, this was repaired before defendant vacated. Defendant had inspected the premises before renting, and testified that the residence was in good condition at that time, except for the locks on the doors.

During the trial, defendant offered the testimony of an inspector for the Milwaukee health department. He testified he had inspected the premises, but further questioning of him was objected to on the grounds that such evidence was immaterial. Counsel for defendant stated the witness would testify there were conditions existing during the period involved which would have constituted violation of the Milwaukee Housing Code. Counsel also recited defendant's contention as to the impact of the health ordinances:

'* * * They (housing ordinances) describe a certain set of circumstances, and if those circumstances can be shown to exist, whether or not the Health Department has found that they do exist or not, is immaterial. If I can show to the satisfaction of the court that certain conditions occur, were present, during this time and at those premises, which would, if found, seen by an inspector of the Health Department on a survey, constitute a violation, then this defense is good. I don't feel that there is any need or requirement that there be a finding of a violation by the Health Department prior to this, or a conviction in a court of a violation.'

Judge Wicklund ruled such evidence was admissible to establish a defense under sec. 234.17, Stats., ¹ but the same evidence was for a 'cillateral purpose' and inadmissible if the objective was to show that the residence 'was untenantable under a certain ordinance of the city of Milwaukee. * * *' Defendant thereupon elected not to proceed with offering evidence of the alleged code violations. Thus, while evidence in support of defendant's affirmative defense could have been introduced under sec. 234.17, this statute was not in defendant's pleadings, nor is there any indication defendant even intended to rely upon it. As a result of this situation there is no evidence in the record of any housing code violations, or that any orders were issued by the commissioner of health with respect to the residence rented to defendant.

On appeal to the circuit court, it was held there was no evidence in the record as to any violation of health department regulations, but the circuit court assumed, arguendo, that the inspector was going to testify that some orders had been issued by the health department to make certain repairs or alterations in the premises. However, the issue of whether the lease agreement was illegal and contrary to public policy was not reached. The circuit judge reasoned that since the trial judge had expressed a willingness to receive evidence under sec. 234.17, Stats., there was no prohibition on getting the desired evidence into the record and therefore defendant was foreclosed from raising any issue with respect to such proffered evidence. In essence, the circuit court held a litigant must put in essential evidence under any means possible. Thus, the initial question presented on this appeal is whether the defendant presented the affirmative defense to the lower courts in a manner sufficient to now have this court review the validity of that defense.

'Where a matter is properly raised in the trial court by the pleadings, evidence, motions, or appropriate requests for rulings, it is sufficiently presented for review on appeal. Within this rule, 'properly raised' means that the question must have been timely called to the attention of the lower court, and this rule has been applied to pleas of estoppel or ratification, laches, waiver, proof of loss under an insurance policy, and to affirmative defenses. For example, affirmative matter of defense is not timely raised if made for the first time on motion for new trial, or by objection to entry of judgment.

'It is often difficult to determine when a matter has been sufficiently presented before the trial court in order that it may be reviewed on appeal. At the very least, the matter must have definitely been called to the attention of the trial court sufficiently to obtain a ruling thereon. * * * As this rule is ordinarily a rule of practice, it need not be rigidly followed, and a mere failure to make the exact motion to technically raise the issue or point should not prevent a review thereof. * * *' 4 C.J.S. Appeal & Error, § 243, pp. 751--755.

In this particular case the defendant was not concerned with the defense provided under sec. 234.17, Stats., but was intent on proving a contract illegal by way of a housing code violation. The defense was pled; a witness called; offer of proof was made; the question was raised on appeal to the circuit court and on rehearing to that court. We conclude these efforts were sufficient to bring the affirmative defense issue before the county and circuit courts and preserve the question for appeal to this court.

The defendant's argument in support of his affirmative defense is primarily based on sections 75--5 through 75--8 of the housing ordinances of the city of Milwaukee. ² Each of these sections begins with language to the effect that no person shall occupy as owner-occupant or let to another for occupancy any dwelling or dwelling unit for living purposes which does not comply with the requirements listed therein. Defendant contends these are mandatory prohibitions to be strictly enforced and that any lease agreement of premises which does not comply with these ordinances is illegal, contrary to public policy and, therefore, void and unenforceable.

The public policy of this state and the city of Milwaukee with respect to blighted and substandard housing is clear:

'There can be no doubt that the legislature and the common council of the city of Milwaukee have both recognized that blighted, substandard and unsanitary housing conditions do exist and that they are detrimental to the public interest.' Dickhut v. Norton (1970), 45 Wis.2d 389, 173 N.W.2d 297.

The objective of eradicating substandard housing is plain; however, defendant's appeal centers on the methods of reaching that objective. The issue defendant has raised is whether the legislature and common counsel of the city of Milwaukee intended that the housing code be an implied covenant mutually dependent with a tenant's covenant to pay rent, and thereby utilize rent withholding as a means of enforcing the housing code.

Defendant has referred this court to Brown v. Southall Realty Company (D.C.App.1968), 237 A.2d 834, wherein the court held a lease void as an illegal contract because of housing code violations. In Brown the tenant refused to pay rent after discovering the house she rented contained certain defects in violation of the Washington, D.C. housing regulations. The violations consisted of an obstructed commode, a broken railing, and insufficient ceiling height in the basement. Prior to entering into the lease the landlord was served with formal notice of a violation by the District of Columbia Housing Division of the Department of Licenses and Inspections. The notice informed him that violations of the housing regulations prohibited use of the basement as a dwelling place. However, the landlord failed to disclose this to the tenant. Sometime after the tenant had taken possession the house was again inspected by the Housing Division and the tenant was told of the violations. At the trial the tenant testified she withheld the rent because of the landlord's failure to correct the violations and because she felt the house would be condemned. In holding the lease agreement...