Appellee's Petition for Rehearing Denied September 12, 1952.
Writ of Certiorari Denied February 9, 1953. See 73 S.Ct. 505.
WILBUR K. MILLER, Circuit Judge.
The appellant, Sarah Edna Bowles, is the owner of a parcel of ground at 2320 H Street, N. W., in the District of Columbia. The lot is some 6 feet higher than the level of the traveled portion of H Street, and the residence thereon extends to the front property line. In front of the house the publicly owned "parking"
On December 15, 1936, B. F. Saul Company, apparently the renting agent for the owner, Mrs. Bowles, leased the entire premises at 2320 H Street to one Luke Gaither. The lease, a copy of which is in the record, does not obligate the landlord to make repairs. There is no statute imposing that duty on a landlord. Gaither's sister, Mrs. Helen Armstrong, who had lived in the house some years before the date of the lease, continued thereafter to occupy it with her brother. On March 30, 1948, Mrs. Armstrong's son, Ralph Mahoney, who was then 7 years old and who lived at 2320 H Street with his mother and uncle, was at play in the passageway above described at a point perhaps half way between the property line and the front sidewalk, which was therefore in the area known as the parking. A portion of the retaining wall collapsed and struck him, inflicting serious injuries.
Through his mother as next friend, the child brought this tort action against Mrs. Bowles, the owner of the property, and against the District of Columbia. It was alleged in the complaint that Mrs. Bowles erected the brick retaining wall in the publicly owned parking with the knowledge and consent of the District of Columbia.
Thus the plaintiff's theory is seen to be this: Mrs. Bowles, having constructed the wall in the parking for the benefit of her property, was under a duty to maintain it in a safe condition; she violated her duty by negligently failing to keep the wall in repair; as a result of her negligence the wall collapsed and injured tenant's invitee; she is therefore liable in damages to the invitee. The District of Columbia, says the complaint, permitted the structure to be erected, and negligently failed to keep it in repair.
Mrs. Armstrong testified at the trial that two years before the accident she had noticed a crack in the retaining wall
As to Mrs. Bowles. Judge Groner, speaking for this court in Harrison v. Mortgage Inv. Co., 1932, 61 App.D.C. 155, 156, 58 F.2d 881, 882, said, "before the owner of the premises can be held liable [for injuries due to a defect therein], there must be a failure on his part to perform a duty which the law imposes." We must therefore ascertain whether Mrs. Bowles owed the child the duty of maintaining the wall in good repair.
The plaintiff, Ralph Mahoney, was living in the house at the invitation of his uncle, who was Mrs. Bowles' tenant, so he was using the appurtenant passageway as the tenant's invitee. The rule is that the duties and liabilities of a landlord to persons on the leased premises by the invitation of the tenant are those owed to the tenant himself. Fraser v. Kruger, 8 Cir., 1924, 298 F. 693. It follows that Mrs. Bowles is not liable for the child's injuries unless she would have been liable to her tenant, Luke Gaither, had he been injured under similar circumstances.
We have seen that Mrs. Bowles had not agreed to repair or maintain the demised premises. It is not suggested that she fraudulently concealed from Gaither, at the time the lease was executed, a defect in the retaining wall which was known to her and not to him; in fact it is not suggested that the wall was defective when the lease was made in 1936. The first indication of a defective condition was the crack in the wall which Mrs. Armstrong noticed in 1946. So, if the crack indicated a defective condition, it was one which arose during the term of the lease. Absent any statutory or contract duty, the lessor is not responsible for an injury resulting from a defect which developed during the term. Johnson v. Kurn, 8 Cir., 1938, 95 F.2d 629, 632.
We said in Security Savings & Commercial Bank v. Sullivan, 1919, 49 App.D. C. 119, 120, 261 F. 461, 462:
To recapitulate: Mrs. Bowles was not guilty of fraud or concealment by failing to disclose, at the time of leasing, defects in the wall of which she had knowledge; she had not agreed to repair; she had conveyed entire possession and control of the premises, including the appurtenant passageway and retaining wall, to Luke Gaither. We conclude that Gaither took the premises and appurtenances thereto as they were in 1936, and assumed whatever risk there might have been in occupying them. It was his duty to maintain the wall in good condition. Mrs. Bowles, therefore, would not have been liable to Gaither had he been injured when the wall collapsed on March 30, 1948. Lawler v. Capital City Life Insurance Co., 1933, 62 App.D.C. 391, 68 F.2d 438; Fraser v. Kruger, supra. Since the plaintiff, being the invitee of the tenant, stood in his right,
The fact that B. F. Saul Company had caused repairs to be made to the premises did not obligate Mrs. Bowles to continue to make them and did not make her a covenantor to repair. Shegda v. Hartford-Connecticut Trust Company, 1944, 131 Conn. 186, 38 A.2d 668; Ginsburg v. Jacobson, 1931, 276 Mass. 108, 176 N.E. 918; Potter v. New York, O. & W. R. Co., 233 App.Div. 578, 253 N.Y.S. 394, affirmed, 1933, 261 N.Y. 489, 185 N.E. 708.
In the foregoing, we have treated the case as though the accident had occurred on the premises owned by Mrs. Bowles and leased to Gaither. That the child was injured in the parking area and not on the premises proper, we regard as immaterial for the reason that Mrs. Bowles owed Gaither no greater duty with regard to maintaining the wall in the parking than with respect to keeping the actual premises in repair. As to the latter, we have seen she owed him no duty at all.
Concerning the area known as the parking and the abutter's legal relation to it, this court said in Allman v. District of Columbia, 1894, 3 App.D.C. 8, 17:
Since the parking area is not a thoroughfare and is not for the general use of the public, the retaining wall was not erected to serve any public purpose, but, as the plaintiff pleaded in his complaint, was built for the benefit of the premises at 2320 H Street. The retaining wall and street-level passageway over the parking were and are appurtenances to those premises. They were not and are not appurtenances for the use of the general public, as were those involved in Altemus v. Talmadge, 1932, 61 App.D.C. 148, 58 F.2d 874, but were for the use and convenience of the tenant and his invitees in reaching the rear of the leased premises. No other person had any occasion to use the passageway. The lease of the entire premises to Luke Gaither carried with it the appurtenant wall and passway and the entire private easement in the parking. That being true, the question whether Mrs. Bowles could be made liable for the child's injuries is to be determined by the same rules which would govern had the accident occurred on the premises actually owned by her.
It follows from what has been said that the trial judge erred in denying Mrs.
As to the District of Columbia. The District had control of the publicly owned parking which was servient to the private easement therein enjoyed by the owner of 2320 H Street. The local authorities permitted the owner to erect the wall at his own expense. As between the owner of the premises and the District, there can be no doubt that the former had the duty of maintaining the retaining wall in good repair. When Mrs. Bowles conveyed the property and its appurtenances to Gaither, she transferred to him, and he assumed, that primary duty of keeping the wall safe. So, if Gaither had been injured by the collapse of the wall due to his own negligent failure to repair it, it would hardly be said he could recover from the District. The child had no greater right against the District than Gaither would have had in similar circumstances. The trial judge should have peremptorially instructed the jury to return a verdict in favor of the District of Columbia.
This conclusion makes it unnecessary for us to consider whether it was the District's duty to make regular inspections of the wall, and whether it had constructive notice of the defect in time to have caused repairs which would have prevented the accident. Nor is it material that the court erroneously included in its charge to the jury an instruction on res ipsa loquitur.
The cases will be remanded to the District Court with instructions to set aside the verdict and the judgment entered thereon, and to enter judgment in favor of both defendants.
Reversed and remanded.
BAZELON, Circuit Judge (dissenting).
The key to the decision of the court, relieving both the landlord and the District of Columbia
Courts have gradually recognized, at least in part, that the exalted position which the landlord held at early commonlaw
"[B]oth the English and the American law have broken almost entirely away from the ancient rule of caveat emptor,"
One writer has suggested that the rule at common law was evolved at a time when, for the most part, leased property consisted of farm lands and the dwellings thereon were only a minor consideration. But, he said,
The second and a more sophisticated reason for relieving the landlord from liability is the hypothesis that "it is still socially desirable not to discourage investment in and ownership of real estate, particularly private dwellings."
In a great many states,
It may be fairly asked, should not the courts of the District of Columbia await a congressional change of this rule? Mr. Justice Sutherland provided the answer to this query in Funk v. United States,
There is no fixed line dividing the sphere of action as between the legislature and the courts for effecting needed change of a common law rule. The line should not be marked in accordance with "metaphysical conceptions of the nature of judge-made law, nor by the fetish of some implacable tenet, such as that of the division of governmental powers, but by considerations of convenience, of utility, and of the deepest sentiments of justice."
It is undoubtedly true that many landlords have shaped their conduct in reliance upon the rule which I would discard. This consideration is entitled to some weight. But, in my view, it cannot outweigh the social and economic need for shifting the distribution of the risk. To those landlords who have acted in good faith there may undoubtedly be some hardship. But in our realistic experience, they are possessed of the better means to discharge this burden. We need give slight consideration to other landlords who would employ the rule to press their advantage to the extent of permitting a known hazard to exist in callous disregard of the safety of fellow human beings who are obviously without the means to protect themselves.
"Now, the evidence in this case is not clear as to why that wall fell and, therefore, the Court at its own instance is instructing you as follows:
"The Court instructs the jury that the plaintiff relies upon the rule of law known as res ipsa loquitur, that is, the thing speaks for itself. It is the law that where a thing which causes injury without fault of the injured person, is shown to be under the control of a defendant, and the injury is such as in the ordinary course of things, does not occur if the one having such control uses proper care, it affords reasonable evidence, in the absence of some satisfactory explanation from a defendant, that the injury arose from want of the defendant's care under the circumstances. It simply means that if there is nothing to explain or rebut the inference that arises from the way in which a thing happened, you might possibly conclude under those circumstances that it may have been occasioned by negligence; that the facts of the occurrence may warrant the inference of negligence not that it compels such an inference and you are so instructed, but it offers evidence of a circumstantial character of the existence of negligence where direct evidence may be lacking and that evidence is to be weighed by you. If you find that a defendant has not offered a reasonable explanation to rebut the inference of negligence, then your verdict must be for the plaintiff, Ralph Mahoney."