Ross v. Haner

Decision Date27 February 1924
Docket Number(No. 497-3897.)<SMALL><SUP>*</SUP></SMALL>
Citation258 S.W. 1036
PartiesROSS et al. v. HANER.
CourtTexas Supreme Court

Action by Thomas E. Haner, by Viola Petrie as next friend, against Mrs. Ellen B. Ross and others. Judgment for plaintiff was affirmed by the Court of Civil Appeals (244 S. W. 231), and defendants bring error. Affirmed.

Andrews, Streetman, Logue & Mobley, of Houston, for plaintiffs in error.

Presley K. Ewing and Ewing Werlein, both of Houston, for defendant in error.

BISHOP, J.

Defendant in error, Thomas E. Haner, a minor seven years of age, fell from a window on the third floor of an apartment building on August 15, 1919, and as a result was seriously injured. He is the son of Viola Petrie and the stepson of her husband, Sidney B. Petrie. The Petries rented from plaintiffs in error apartment No. 36 on the third floor of this building from July 1, 1919, to October 1, 1919, and occupied same as their residence. As a part of the rental contract plaintiffs in error, the owners of the building, for valuable consideration, agreed to make certain repairs in the apartment, including the repair of the window screen attached to the window from which defendant in error fell. This screen was hung from the top of the window, and had no latch to hold it at the bottom, and a slight pressure would cause it to swing out. The agreement was to supply a latch which would fasten the screen to the window, and which could have been done at a small cost. While discussing the agreement to rent the apartment, and having in mind the danger of her son falling through this window, Mrs. Petrie advised plaintiffs in error that he would live with them in the apartment; that she and her husband were both working, and her son would be left at the apartment under the care of a servant. Plaintiffs in error made all repairs under their rental agreement, except that of placing a latch on the screen, which they did not do. The parents relied on the promise of plaintiffs in error to place the fastening on the screen. They occupied the apartment believing that this had been done until six or eight days prior to the injury, when Mrs. Petrie, in cleaning the apartment, discovered the repair had not been made. She at once notified plaintiffs in error of this, and they advised her that they too thought the repair had been made, and assured her that they would have it attended to at once. The Petries, relying on this promise, did not know the fastening had not been placed on the screen until after defendant in error fell and was injured. Thinking the servant, under whose care they intended to leave the defendant in error, would come within a short while, the mother and stepfather went to their work, and left him asleep. The servant failed to come. The boy went to the window to look out. He placed his head against the screen, which came open, and he fell.

In the trial court the jury found that the continued existence of this defect in the screen was due to negligence on the part of plaintiffs in error, which was a proximate cause of the injury; that defendant in error was not guilty of contributory negligence; and that he was injured in the sum of $22,500. From the judgment of the trial court in this sum the plaintiffs in error appealed, and the Court of Civil Appeals affirmed the judgment. 244 S. W. 231.

The Court of Civil Appeals found the following facts which are supported by evidence, to wit:

"Now in this case, the very purpose of the Petries in contracting to have the screen repaired was the prevention of danger to appellee. Appellants undertook to repair the screen primarily for the benefit and protection of appellee. Both parties understood the purpose of the contract and the probable consequences of its breach or of a negligent failure to execute it."

Here we have a contract in which the landlords have bound themselves for a sufficient consideration to make specific repairs, one of which was the placing of a catch on the screen. Both the trial court and the Court of Civil Appeals have found as a fact that the last-named repair was for the protection of this child from falling from this window; that the Petries insisted upon this repair for this purpose; that plaintiffs in error knew the purpose for which the tenants insisted on having the catch placed on this screen; and that both landlords and tenants had in contemplation, in case this contract was not complied with, this, or some like injury, might be sustained by defendant in error.

Plaintiffs in error announce the proposition that a landlord's promise to repair, made as a part of his tenancy contract with his tenant for a valid consideration, binding the landlord to make the specific repair promised, cannot give rise to an obligation on the part of the landlord for safety if breached, and such breach proximately causes injury to the tenant or a member of his family. Defendant in error contends that where the landlord, for a valuable consideration, and as part of the contract of tenancy, agrees to make a specific repair to avert a condition of apparent danger, and fails through negligence to make such repair, which is a proximate cause of injury to the tenant's infant child, he is liable for such injury, where it is clear that the safety of the child was within the mutual contemplation of the parties, and was the purpose for which the promise of repair was required and made.

The mere relation of landlord and tenant creates no obligation on the part of the landlord to repair or keep in repair the leased premises. The tenant takes the premises as he finds them. On the question as to whether a landlord can be held liable for personal injuries resulting from a breach of his contract to repair, or to keep in repair the rented premises, the courts of this country are in hopeless conflict. In those jurisdictions in which it is held that no such liability exists most of the courts assign as a reason therefor that such damages are too remote and not in the contemplation of the parties at the time the contract was made. Others lay down the rule that a tort as for negligence cannot be based upon mere breach of a contract, and that, as there is no obligation on the part of the landlord to repair in the absence of a contract, the obligation necessarily arises from the contract alone. From this they reason that, had the law imposed the duty on the landlord to make the repairs and he negligently failed to do so, he would be liable for personal injury resulting therefrom, if such injury might reasonably have been anticipated as a result of such negligent failure. They hold that, where the duty is imposed by law, liability may result, but, if this duty is assumed by contract, there is no liability; that while the duty is the same, whether imposed by law or assumed by contract, the liability is different. In other jurisdictions it is held that, when such contract amounts to a covenant to keep the premises reasonably safe, or where the contract to repair is made under such circumstances as plainly to indicate that such injuries are contemplated by the parties at the time the contract is made, the landlord would be held liable for his negligent failure to comply with its terms.

The case of Murrell v. Crawford et al., 102 Kan. 118, 169 Pac. 561, was an action by a tenant against the landlord and his agent for injuries sustained by falling through the floor of a front porch by reason of its rotten and defective condition. The evidence shows that, after the plaintiff examined the house with a view of renting it, she told the agent that the porch needed repairing; that when she went to pay the first month's rent she told him she would take the house if he would repair it, which he agreed to do; that after living in the house and using the porch for five months she fell through the porch floor and was injured. There was no evidence to indicate that at the time of the agreement to repair it was contemplated that personal injury might result from a failure to comply with such agreement. The Supreme Court of Kansas in its opinion says:

"But personal injuries are almost uniformly considered by the courts to be too remote to be included in an action for breach of covenant to repair. Loss of life or limb is not a natural and probable consequence which ordinarily and reasonably could be anticipated from a breach of covenant to make repairs on a dwelling house. This is the doctrine of practically all the text-books, and it is supported by a plethora of decisions. Miller v. Sullivan, 77 Kan. 252, 94 Pac. 266, 16 L. R. A. (N. S.) 737, 15 Ann. Cas. 561; Anderson v. Robinson, 182 Ala. 615, 62 South. 512, 47 L. R. A. (N. S.) 330, Ann. Cas. 1915D, 829; Dustin v. Curtis, 74 N. H. 266, 67 Atl. 220, 11 L. R. A. (N. S.) 504, 13 Ann. Cas. 169; Davis v. Smith, 26 R. I. 129, 58 Atl. 630, 66 L. R. A. 478, 106 Am. St. Rep. 691, 3 Ann Cas. 832; Thompson v. Clemens, 96 Md. 196, 53 Atl. 919, 60 L. R. A. 580; 18 A. & E. Ency. of Law, 234; 16 R. C. L. 1059; 3 Joyce on Damages, 1942; Jones on Landlord and Tenant, §§ 592, 675; 2 McAdam on Landlord and Tenant [§ 386] 1316; 1 Tiffany, Landlord and Tenant [§§ 86, 87], 574, 592; 2 Underhill on Landlord and Tenant, 859. See, also, notes in 11 L. R. A. (N. S.) 504; 34 L. R. A. (N. S.) 804; 48 L. R. A. (N. S.) 971."

In the case of Stillwell's Adm'r v. South Louisville Land Co., 58 S. W. 696, 52 L. R. A. 325, in an action to recover damages for the death of an infant son of a tenant caused by his falling into an open and unprotected cistern on the property of the landlord, occupied by the tenant and his family as a residence, the Court of Appeals of Kentucky held a petition to state a cause of action which alleged:

"At the time of the rent contract there was on the premises a dangerous, open, unprotected cistern, containing a large quantity of water; that, to induce appellant to move onto and...

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18 cases
  • White v. Contreras
    • United States
    • California Court of Appeals
    • January 10, 2002
    ...screen in question in a manner which would at least lessen the danger to the children of falling through the same"]; Ross v. Haner (Tex. Comm'n App.1924) 258 S.W. 1036, 1041 [by entering into a rental contract containing specific provisions requiring the landlords to repair an apartment win......
  • Shaw v. Butterworth
    • United States
    • Missouri Supreme Court
    • April 14, 1931
    ... ... Stewart, 187 Pa. 217; Little v. Macadaras, 29 ... Mo.App. 332, 38 Mo.App. 187; Glenn v. Hill, 210 Mo ... 291, 109 S.W. 27; Ross et al. v. Haner, 258 S.W ... 1036; Miller v. Geeser, 193 Mo.App. 1, 180 S.W. 3 ... (a) The defendant could reasonably anticipate that the ... ...
  • Kuemmel v. Vradenburg
    • United States
    • Texas Court of Appeals
    • April 18, 1951
    ... ... v. Doell, Tex.Civ.App., 1 S.W.2d 501; Ross v. Haner, Tex.Civ.App., 244 S.W. 231; Id., Tex.Com.App., 258 S.W. 1036 ...         This matter was directly passed upon in the case of ... ...
  • Shaw v. Butterworth
    • United States
    • Missouri Supreme Court
    • April 14, 1931
    ...v. Stewart, 187 Pa. 217; Little v. Macadaras, 29 Mo. App. 332, 38 Mo. App. 187; Glenn v. Hill, 210 Mo. 291, 109 S.W. 27; Ross et al. v. Haner, 258 S.W. 1036; Miller v. Geeser, 193 Mo. App. 1, 180 S.W. 3. (a) The defendant could reasonably anticipate that the plaintiff would fall out of the ......
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