The Dalles City v. River Terminals Company

• Citation: 226 F.2d 100
• Decision Date: 21 September 1955
• Docket Number: No. 14287.,14287.
• Parties: THE DALLES CITY, a municipal corporation, Appellant, v. RIVER TERMINALS COMPANY, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

226 F.2d 100 (1955)

THE DALLES CITY, a municipal corporation, Appellant, v. RIVER TERMINALS COMPANY, Appellee.

No. 14287.

United States Court of Appeals Ninth Circuit.

September 21, 1955.

Phillips, Coughlin, Buell & Phillips, James K. Buell, Portland, Or., Charles A. Phipps, Phipps & Phipps, The Dalles, Or., for appellant.

Harold E. Patterson, Hickson & Dent, Portland, Or., for appellee.

Before STEPHENS, HEALY and POPE, Circuit Judges.

POPE, Circuit Judge.

The Dalles City, although a municipal corporation of the State of Oregon, owned and operated a municipal airport across the Columbia River at Dallesport, Washington, as the Oregon law permitted it to do. The City made a lease to S & M Flying Service, a corporation, whereby it leased and let to the latter the privilege of using the airport in common with others, and also the exclusive use of the hangar and shop buildings on the airport grounds. The appellee River Terminals Company, plaintiff below, made an arrangement with S & M Flying Service, whereby the latter agreed to store an airplane belonging to plaintiff within the hangar building in the possession of the Flying Service. This airplane was in that hangar during the month of January, 1950, when a very heavy snowfall occurred piling snow to a considerable depth upon the roof of the hangar building.

The lease to the Flying Service contained the following provision: "The Lessor reserves the right, but shall not be obligated to the Lessee, to maintain and keep in repair the landing area of the airport and all publicly owned facilities of the airport, together with the right to direct and control all activities of the Lessee in this regard."

DeWald, airport manager employed by the City, and Moore, president of Flying Service, were in conference each day following the heavy snowfall with respect to the snow conditions. The president testified: "Mr. DeWald and I were inside of the building on the 19th and looked for any signs of disturbances that might indicate to us any danger and we decided that there was none and went on about our other work." He also testified: "Q. Did you ever ask him to take the matter up with the City Engineer? A. No. We didn't feel that there was any danger at that time. That was the purpose of our discussion — that was the outcome of our discussion that we didn't feel that there was any immediate danger then."

The roof of the hangar in which the airplane was stored collapsed on January 20, 1950, and damaged the plaintiff's plane. This collapse was due to the weight of the snow upon the roof. Plaintiff's expert witness, an architect, testified that in his opinion the collapse came about because the snow load upon the roof was uneven in that the weight was more heavy on some portions of the roof than upon others. This the witness called "eccentric loading", which in his opinion caused a strain for which the roof was not designed.

The plaintiff brought this action against both the S & M Flying Service and the City to recover the damages to its airplane. The cause was tried to the court sitting without a jury and judgment was granted against both defendants. The City appeals and here urges among other things the contention made by it in the court below stated in the pretrial order as follows: "Defendant The Dalles City contends that the admitted facts and the statement of factual contentions contained in the foregoing pre-trial order are not sufficient to constitute a cause of action against this defendant for the reason that plaintiff has not shown any duty on the part of this defendant toward plaintiff or its property and for the further reason that the admitted facts affirmatively disclose that this defendant owed no affirmative duty toward plaintiff or its property."

The point so made and again urged upon this appeal is well taken. The ordinary rule is that where premises are let to a tenant the landlord owes no general duty of repair. Clarke v. Yukon Inv. Co., 83 Wash. 485, 487, 145 P. 624, 625; Miles v. Spokane P. & S. Railway Co., ...