Walker & Dunlop Inc. v. Gladden, 359.

• Decision Date: 19 June 1946
• Docket Number: No. 359.,359.
• Citation: 47 A.2d 510
• Court: D.C. Court of Appeals
• Parties: WALKER & DUNLOP, Inc., v. GLADDEN et al.

47 A.2d 510

WALKER & DUNLOP, Inc.,

v.GLADDEN et al.

No. 359.

Municipal Court of Appeals for the District of Columbia.

June 5, 1946.

Rehearing Denied June 19, 1946.

Appeal from the Municipal Court for the District of Columbia, Civil Division.

Action by Richardson S. Gladden and Hazel Gladden against Walker & Dunlop, Inc., a corporation, to recover from defendant as landlord of plaintiffs for damages arising from injuries allegedly suffered by Hazel Gladden when she received a shock from an electric light switch in the apartment rented from the defendant. From an adverse judgment, the defendant appeals.

Judgment reversed, and new trial awarded.

Cornelius H. Doherty, of Washington, D. C., for appellant.

Arthur L. Willcher, of Washington, D. C., for appellees.

Before CAYTON, Chief Judge, and HOOD, Associate Judge.

HOOD, Associate Judge.

Plaintiffs below, husband and wife, sued their landlord for damages arising from personal injuries allegedly suffered by the wife when she received a shock from an electric light switch in their apartment.

Plaintiffs' evidence tended to show that they had occupied the apartment since April 1941; that around Thanksgiving of 1943 they reported ‘something’ respecting the electric system in the apartment to the landlord; that late in December or early January the landlord sent out a man who did something to the light switch in the bathroom; that after that ‘sparks flew from the switch’; that on May 9 they reported to the landlord that the light switches were bad, especially in the bathroom; that sometimes the lights would not come on, and ‘they would flick and flick and sparks flew terribly’; that the landlord sent no one to make repairs, and on May 12 the wife answered the telephone, which is located in the hall, and as she picked up the receiver she ‘leaned against the light switch,’ and the next thing she recalled she was lying in the hallway ‘crying and shaking all over and my foot was bleeding.'

The evidence that the hall switch was defective, that the wife received a shock from it, or indeed that she received a shock at all, and that the injuries complained of resulted from a shock, was scant. However, we cannot say that the evidence did not warrant submitting these questions to the jury. But, assuming a shock from a defective switch, the question of the landlord's liability remains for consideration.

The court charged the jury that if the landlord undertook to make any repairs to the electrical system, it was the landlord's duty to make them properly; and if, after the repairs were made, the electrical system was still in a dangerous condition, then the defendant's failure to make the repairs was negligence. We think that this instruction submitted the case to the jury upon an erroneous theory in the light of the testimony in the case. It is, of course, well established that if a landlord undertakes to repair, whether obligated to do so or not, it is his duty to make the repairs properly and he is liable for any neglect in making them. Miller v. Fisher, 111 Md. 91, 73 A. 891, 50 L.R.A.,N.S. 295; Marks v. Nambil Realty Co., Inc., 245 N.Y.256, 157 N.E. 129. However, in the present case, there was no evidence that the landlord ever undertook to make repairs to the switch from which the alleged shock was received. The landlord had undertaken to repair the bathroom switch, but there is no evidence, expert or otherwise, that neglect in making those repairs, if there was neglect, had or could have had any effect upon the hall switch from which the alleged shock was received. There was no testimony that when the man came and repaired the bathroom switch his attention was called to the hall switch or that he was asked to inspect it or repair it. Therefore, we think the principle of law given to the jury by the trial judge had no application to the facts of the case and the giving of it was erroneous.

It is well settled that generally there is no obligation on the part of the landlord to make ordinary repairs. Paratino v. Gildenhorn, 55 App.D.C. 271, 4 F.2d 938. And the lease in this case did not impose upon the landlord the duty of making repairs. It contained a provision that the tenant should keep the premises in good order and condition, and surrender them in the same order in which received, usual wear and tear excepted. The tenant argues that two other provisions should be construed as requiring the landlord to make repairs. Those provisions are that the tenant will allow the landlord access to the premises for the purpose of inspection or for making any repairs the ‘landlord considers necessary or desirable,’ and that the tenant will give the landlord prompt notice of any defects in the structure and equipment or fixtures. We do not think these provisions can be construed to impose a duty on the landlord to make repairs. We think a landlord may reserve the right to make such repairs as he thinks necessary or proper for the protection of his property, or even for the comfort and convenience of his tenants, without imposing upon himself the duty to make them. Gulliver v. Fowler, 64 Conn. 556, 30 A. 852; Stone v. Sullivan, 300 Mass. 450, 15 N.E.2d 476, 116 A.L.R. 1223.

It is also insisted by the plaintiffs that because the evidence showed that in the past the landlord had made numerous repairs to various apartments in the building that by this course of conduct the landlord had assumed the duty and obligation to make repairs. We think this contention cannot be sustained. If such were the law, then all landlords would hesitate to make any repairs for fear that by so doing they would obligate themselves to make all repairs. Yarbrough v. Booher, 141 Tex. 420, 174 S.W.2d 47, 150 A.L.R. 1369, and cases cited in annotation following at page 1382.

The landlord's liability in this case, if there be liability, must arise from the fact that the leased premises constituted a unit in an apartment house. The landlord of an apartment house who leases portions of it to various tenants and retains under his control other portions for the common use of all tenants stands in a situation different from the landlord whose tenant has possession and control of the entire building. The liability of the landlord of an apartment house for defective conditions within the building or on its grounds has been the subject of discussion in many cases in this District; and it is now well established that such a...