Teglo v. Porter

• Decision Date: 25 February 1965
• Docket Number: No. 37263,37263
• Citation: 399 P.2d 519,65 Wn.2d 772
• Court: Washington Supreme Court
• Parties: Andy W. TEGLO, Appellant, v. Robert PORTER and Ruth Porter, husband and wife, Eugene Dolman and Jane Doe Dolman, husband and wife, South End Brokers, Inc., a business corporation, Respondents.

Page 772

65 Wn.2d 772

399 P.2d 519

Andy W. TEGLO, Appellant, v. Robert PORTER and Ruth Porter, husband and wife, Eugene Dolman and Jane Doe Dolman, husband and wife South End Brokers, Inc., a business corporation, Respondents.

No. 37263.

Supreme Court of Washington, Department 2.

Feb. 25, 1965.

Greive & Law, R. R. Bob Greive, Seattle, for appellant.

Lycette, Diamond & Sylvester, George W. Wilkins, Seattle, for respondents.

HAMILTON, Judge.

Plaintiff fell through the floor of his orally rented premises and was injured. He sued defendants, his landlords, in tort, alleging negligent failure to comply with an oral agreement to repair and maintain the premises in a safe condition. Defendants denied any covenant of repair or maintenance and negligence, and affirmatively alleged contributory negligence on the part of plaintiff. The issue of liability was tried separately and submitted to a jury. The jury returned a verdict favorable to defendants. The trial court denied plaintiff's motion for new trial and entered a judgment of dismissal. Plaintiff appeals.

On appeal, plaintiff essentially contends his theory of the case was not properly submitted to the jury. In support of this contention, plaintiff assigns error to the giving of a portion of one instruction and to the failure to give two proposed instructions.

The core of plaintiff's claim of tort liability is his allegation and contention that prior to or at commencement of the tenancy, and as a condition thereof, defendants orally agreed to repair and maintain the premises in a safe condition. Without such a covenant, plaintiff tacitly concedes that, under the circumstances presented, his claim fails. Plaintiff presented substantial evidence which, if believed by the jury, would support a finding of such a covenant. In addition, the evidence adduced would support findings to the effect that (a) the floor collapsed under plaintiff because of weakness due to termites or rot; (b) defendants, during the tenancy, had timely notice, through plaintiff, of a substantial weakness in the floor, and agreed to remedy the same; (c) repair of the floor would have revealed the cause of the weakness; and (d) defendants failed to repair the floor within a reasonable time after notice of its condition.

It is the general rule, as between landlord and tenant, that, absent agreement to the contrary or a fraudulent concealment of obscure defects, the maxim Caveat emptor applies, and the tenant takes the demised premises as he finds them. There is no implied warranty or covenant on the landlord's part that the premises are safe or fit for the purpose intended. Hughes v. Chehails School Dist., 61 Wash.2d 222, 377 P.2d 642 (1963); Flannery v. Nelson 59 Wash.2d 120, 366 P.2d 329 (1961); Bidlake v. Youell, Inc., 51 Wash.2d 59, 315 P.2d 644 (1957); Conradi v. Arnold, 34 Wash.2d 730, 209 P.2d 491 (1949); Howard v. Washington Water Power Co., 75 Wash. 255, 134 P. 927, 52 L.R.A.,N.S., 578 (1913).

To this general rule certain modifications have developed. See Prosser on Torts (3d ed.) § 63, p. 411, et seq.; 39 Wash.L.Rev. 352, et seq.

The particular modification, upon which plaintiff relies in the instant case, is to the effect that where there is a covenant or agreement entered into, contemporaneously with commencement of the tenancy, whereby the landlord is to keep and maintain the premises in repair and the landlord acquires knowledge or notice of a condition, existing either before or arising during the tenancy, rendering the premises unsafe, and the tenant, a member of his family, or a guest, suffer personal injury therefrom, after a reasonable time for making the premises safe has elapsed from the time of the landlord's notice, then the landlord is liable in tort for the injuries sustained, absent contributory negligence. Mesher v. Osborne, 75 Wash. 439, 134 P. 1092, 48 L.R.A.,N.S., 917 (1913); Lowe v. O'Brien, 77 Wash. 677, 138 P. 295 (1914); Fletcher v. Sunel, 19 Wash.2d 596, 143 P.2d 538 (1943); Restatement, Torts § 357; Prosser on Torts (3d ed.) § 63, pp. 421, 422, 423.

Restatement, Torts § 357 Comment a explains and justifies the modification as follows:

'The lessor's duty to repair in so far as its breach subjects him to inability for bodily harm caused to the lessee and those upon the land in his right, is not contractual but is a tort duty based on the fact that the contract gives the lessor ability to make the repairs and control over them. The lessor is not liable for bodily harm caused even to his lessee by his failure to make the premises absolutely safe. He is liable only if his failure to do so is due to a lack of reasonable care exercised to that end. * * * Since the duty arises out of the existence of the contract to repair, the contract defines the extent of the duty. Unless the contract stipulates that the lessor shall inspect the premises to ascertain the need or repairs, a contract to keep the interior in safe condition subjects the lessor to liability if but only if, reasonable care is not exercised after the lessee has given him notice of the need of repairs.'

The trial court correctly recognized plaintiff's theory and the sufficiency of the evidence, if believed, to support a finding of negligence. In submitting the issue of liability to the jury, the trial court adopted and gave instruction No. 9 as proposed by defendants. Instruction No. 9 is a formula instruction, and purports to set out all of the elements (four in number) which plaintiff must establish to prevail. Plaintiff, in his exception to instruction No. 9 and on appeal, does not quarrel with the giving of a formula instruction. In fact, he proposed a similar...