Wardman v. Hanlon

• Decision Date: 01 May 1922
• Docket Number: 3712.,3711
• Citation: 280 F. 988
• Parties: WARDMAN v. HANLON (two cases).
• Court: U.S. Court of Appeals — District of Columbia Circuit

280 F. 988

WARDMAN v. HANLON (two cases).

Nos. 3711, 3712.

United States Court of Appeals, District of Columbia.

May 1, 1922

Submitted April 3, 1922.

Appeal from the Supreme Court of the District of Columbia.

Dan Thew Wright and Philip Ershler, both of Washington, D.C., for appellant.

D. W O'Donoghue and A. A. Alexander, both of Washington, D.C for appellees.

SMYTH Chief Justice.

These cases were submitted on the same record. Mary A. T. Hanlon plaintiff in the first case, is the wife of the appellee, plaintiff in the second one. She averred in her declaration that the defendant, at the time of the accident which forms the basis of the action, was in the control of, and operating, an apartment house in Washington; that she was then in the lawful possession and occupancy of an apartment therein, under a lease from the defendant to her husband, for the use of himself and family; that the apartment included a bathroom, equipped with the usual toilet facilities; that the defendant negligently and carelessly allowed the flush tank connected with the toilet in the bathroom, and pipes leading to it, to become filled with superheated water and steam; that while she was using the toilet she opened a valve for the purpose of admitting water to flush the bowl, and thereupon a stream of scalding water and steam was thrown against her bare body at that place where the limbs join the trunk, causing severe burns, from which she suffered great pain and agony. Her husband, alleging substantially the same facts, sued for the expense which he was put to in providing her with medical and surgical attention, and servants, and for loss of her society and consortium.

To each declaration the defendant filed a plea of not guilty. The evidence was without substantial conflict, but there was a dispute as to the inference to be drawn from it. Verdicts were returned in favor of the plaintiffs, upon which judgments were entered. Appellant brings the cases to this court asking for a new trial.

He alleges many errors, but groups them under five captions. He argues that the action is ex contractu and not ex delicto, and says the plaintiffs were not entitled to recover, because they were not able to show that any particular provision of the written contract was violated. He did not so construe plaintiffs' declarations when he filed his pleas, for, instead of presenting the pleas appropriate in an action on contract, he pleaded not guilty, which was proper in an action for tort. It is true the declarations aver a lease, but only for the purpose of establishing the status of the parties from which flowed the duties later alleged. The allegations with respect to the contract are made by way of inducement to the general cause of action, and not as the foundation of it. In an early case this language occurs:

'The subjects proper for action on the case are of two distinct classes. First, where there is a tort * * * entirely unconnected with any contract. Secondly, when there is a contract, either express or implied, from which a common law duty results, an action on the case lies for a breach of that duty; in which case the contract is laid as mere inducement, and the tort arising from the breach of duty as the gravamen of the action. ' Emigh v. Railroad Co., 4 Biss. 114, Fed. Cas. No. 4,449.

In accord with these views is the opinion of the learned Judge Hammond in Whittenton Manufacturing Co. v. Memphis & Ohio R.P. Co. (C.C.) 21 F. 896, where he refers to many authorities.

The declarations say that the plaintiffs were in possession of the apartment at the time of the accident under a letting whereby the defendant had agreed to give to them the use of the apartment, which included a bathroom and toilet facilities. Stress is laid upon the word 'whereby,' and it is urged that it indicates that whatever rights the plaintiffs had were contractual. But this is not all the declarations allege on the point. Following immediately the part just mentioned they say:

'And it then and there became and was the duty of the defendant to furnish to the plaintiff's husband and his family * * * the use of said bathroom, suitably and properly equipped with running water,' of a proper temperature, for flushing the bowl, etc.

In other words, having set forth the relation of the parties as established by the lease, they then aver the duties which the common law attaches to the relation.

Cases which rule that a declaration must proceed upon some definite theory are quite beside the question with which we are dealing. The doctrine they announce is not in dispute here. Nor is it correct to say that this case turns on whether or not a lessee of premises or his wife may recover for personal injuries due to the lessor's failure to keep a covenant. Plaintiffs, as we have said, did not sue for breach of a covenant but for breach of a common-law duty arising out of the contract of tenancy. Many decisions are found in appellant's brief to the effect that the wife of a tenant cannot maintain a tort action against the landlord for injuries, where the action is based on a violation of the landlord's agreement to repair. The reason assigned is that there is no privity of contract between the landlord and the tenant's family. But we repeat: This action is not bottomed on contract, and hence the doctrine of those cases is inapposite.

There is a wide distinction between cases where the landlord retains exclusive control over a particular part of the building and those where the control of the entire structure has passed completely out of him and into the possession of the tenant. O'Hanlon v. Grubb, 38 App.D.C. 251 257, 37 L.R.A. (N.S.) 1213. Cases pointing out this distinction are Iowa Apartment House Co. v. Herschel, 36 App.D.C. 457, 465, Ann. Cas. 1912C, 206; Security Savings & Commercial Bank v. Sullivan, 49 App.D.C. 119, 261 F. 461; Squire, Vandervoort & Co. v. Ryerson, 150 Ill.App. 255, 261; Shoninger Co. v. Mann, 219 Ill. 242, 76 N.E. 354, 3 L.R.A. (N.S.) 1097; Doyle v. Franek, 82 Neb. 606,...