William White & Co., Inc. v. Lichter
| Decision Date | 24 March 1933 |
| Parties | WILLIAM WHITE & CO., Inc., v. LICHTER. |
| Court | Tennessee Court of Appeals |
Certiorari Denied by Supreme Court October 1933.
Appeal in Error from Law Court, Shelby County; W. B. Rosenfield Special Judge.
Action by B. Lichter, administrator of the estate of Julia Lichter deceased, against William White & Co., Inc., and others. From a judgment against named defendant and an order overruling its motion for a new trial, it appeals in error.
Affirmed.
Emmett W. Braden, of Memphis (Thomas C. Farnsworth and Armstrong McCadden & Allen, all of Memphis, of counsel), for plaintiff in error.
Chas M. Bryan and Hanover & Hanover, all of Memphis, for defendant in error.
This is a suit by the administrator of the estate of Julia Lichter against William White & Co., a corporation doing business in the city of Memphis, as rental agents, and against the present owners of a certain house and lot in the city of Memphis occupied by B. Lichter and his wife under a rental contract at the time plaintiff's intestate, wife of B. Lichter, received the alleged personal injuries resulting in her death.
The declaration is in two counts. The declaration in both counts aver that B. Lichter and his wife, Julia Lichter, were occupying the premises as tenants under a rental contract negotiated with William White & Co., Inc., as the rental agents of the owners of the property; that the rental agent and the owners of the property had permitted the property to become in bad repair; that a back door leading from a porch in the rear to the back steps was in a dangerous condition; and that the steps were not provided with proper guard rails. The declaration further avers that William White & Co., Inc., as the rental agent, had promised to repair the door and to put it in safe condition; that they failed to comply with the promise to repair said door and steps, and, as a result, plaintiff's intestate fell when the back door leading from the porch to the steps gave way as she was opening the same, causing her to fall down the steps, resulting in personal injuries from which she died. The declaration in the two counts avers negligence in permitting the door and steps to remain in the dangerous condition with knowledge and notice; and also avers that the rental agents, William White & Co., Inc., had specifically promised B. Lichter to repair the premises, and especially the door and steps.
All of the defendants filed pleas of not guilty and contributory negligence.
At the hearing of the cause, at the conclusion of plaintiff's proof, a motion for a directed verdict in favor of all of the defendants except the defendant William White & Co., Inc., was sustained. A motion for a directed verdict in favor of defendant William White & Co. was overruled. The trial resulted in a jury verdict in favor of plaintiff and against the defendant William White & Co., Inc., for the sum of $2,000. A motion for a new trial was made by defendant William White & Co., and, after a remittitur of $600 was suggested by the court and accepted by the plaintiff under protest, the motion for a new trial was overruled.
From the action of the court in overruling its motion for a new trial and in rendering a judgment against it in the sum of $1,400 and the costs, the defendant William White & Co. prayed and was granted an appeal in the nature of a writ of error to this court, and the appeal has been duly perfected, and errors assigned.
The first assignment of error is that there is no evidence to sustain the verdict. The second assignment presents the real contention and theory of appellant, and is as follows: "The court erred in overruling defendant's motion for peremptory instructions made at the conclusion of all the evidence. This was erroneous because:
"(a) There is no proof of any actionable negligence on the part of defendant, William White & Co., Inc.
(b) From the uncontradicted testimony and all reasonable inferences to be drawn therefrom, plaintiff's intestate was guilty of contributory negligence as a matter of law.
(c) This defendant was acting for a known and disclosed principal and within the scope of its authority, and any contract made by the defendant did not bind the defendant personally but was made for and on behalf of its principal.
(d) This defendant was an agent and there was a judgment for the principal and said judgment operated to relieve the agent of any responsibility because the agent was acting within the scope of its employment for a known principal.
(e) The defendant could not have reasonably anticipated that by reason of its failure to repair the screen door any injury would result to the tenant or to one there by the tenant's invitation, and the defendant's failure to fulfill its contract was not the proximate cause of plaintiff's intestate's injuries."
The third assignment is directed to the action of the court in admitting over the objection of the defendant certain evidence set out under the assignment, and which will later be referred to.
There is evidence in the record to support the following facts: It appears that B. Lichter rented the premises from the owner, Madison F. Embry, in about 1914, and continued to occupy the premises with his wife and family until the date of the accident. The rental was from month to month. For the past several years plaintiff in error. William White & Co., Inc., had the rental of this property from the owner, and collected the rents from month to month, and made repairs when necessary, and B. Lichter had all his transactions with William White & Co., Inc. The owner of the property had died prior to this accident, and this property was a part of his estate; the heirs at law who inherited the property were nonresidents of the state, and appellant apparently had full control of renting the property, collecting the rents, making repairs, and in fact looking after and managing the property for the owner.
The premises had a small back porch, from which a screen door opened at the top of a flight of steps leading to the yard at the rear. B. Lichter discovered that the screen door referred to was in bad condition, and in August preceding the accident, which occurred on September 24, B. Lichter, when he called at the offices of appellant to pay the August rent, notified Mr. Dillon, one of the officers of William White & Co., of the defective condition of the door or screen, and made request that the same be repaired and put in safe condition. Mr. Brinkley was the general manager for the real estate and rental department of William White & Co., and it was the custom for Mr. Dillon to receive complaints and refer the same to Mr. Brinkley. The repairs were not made as promised in August, and, when Lichter paid the rent at the offices of appellant for September, he again called attention to the bad condition of the door, and again requested that it be promptly made, and, according to his evidence, he was assured by appellant that the repairs would be made to the door and the same put in safe condition. The rental was from month to month, and throughout the period appellant collected the rents and made repairs. The accident to plaintiff's intestate occurred on September 24 following the last promise to repair. There is no proof in the record that plaintiff's intestate, the wife of plaintiff, knew of the bad condition of the door or of any danger likely to result from its use. The condition of the door was not such as was apparent from a casual examination. There is no proof in the record that B. Lichter told his wife of the promise to repair by appellant. Lichter testified that he remained in the occupancy of the house on the strength of the promise of appellant that the repair to the door would be made. This last promise to repair, according to his evidence, was made by appellant about September 1 preceding the accident on September 24, and that he remained in the house on the strength of the promise to make the repair, and would not have remained in the house had it not been for the promise that the repairs would be made. There was evidence introduced that the screen door was in a very bad condition, some of it in a decayed condition. It was due to the bad condition of the door that plaintiff's intestate fell and sustained the injuries resulting in her death. She was 82 years of age, and her husband was about 10 years younger. The trial court in rendering a judgment denied to B. Lichter any participation in the recovery, on the ground that he knew of the defective condition of the door.
The propositions of law submitted under the second assignment by appellant are: First. That the liability imposed upon the landlord for injuries resulting to a tenant or third parties from a failure to repair a defective condition of the premises, known to the landlord to be thus defective, is not extended to any relation other than that of landlord and tenant. In support of this proposition appellant cites and relies upon the case of Smith v. Tucker, 151 Tenn. 347, 270 S.W. 66, 41 A. L. R. 830. That case deals with the liability of a seller of property to a purchaser, and in the opinion it is held that the rule applying to landlord and tenant, or to the liability of the landlord to a tenant for defects known to the landlord which were unknown to the tenant, and not disclosed to the tenant, does not apply to a seller of real estate to a purchaser; the court holding that the rule would not be extended to any other relation other than that of landlord and tenant. Obviously, that case would have no application to the present case.
Second. That a landlord's liability to a third person for failure to repair defective premises cannot rest on any terms of a...
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