178 P. 234 | Or. | 1919
Lead Opinion
It appears that at the time of the leasing the building in question was very old, out of repair and in a dilapidated condition ■, that it was only a mat
There was an old stairway leading to the basement in which the plaintiff kept her wood and vegetables. She claims that it was necessary for her to use this stairway.. A short time before the accident, while plaintiff was going down this stairway the bottom step broke, by reason of which she fell but was not then injured. The complaint alleges that she then notified the defendant, through his agent, of the condition of the stairway and that he promised and agreed to make the necessary repairs immediately; that relying upon such promises she continued to use the stairway, taking reasonable care and precaution; that in fact the stairway was old, worn out and defective; that its condition was latent and concealed but should have been known and would have been known to the defendant with the exercise of reasonable care and diligence; that after receipt of the notice the defendant sent a carpenter to the premises for the purpose of putting the stairway in good condition so that it could be used safely for the purposes for which it was intended; that the carpenter made the required measurements and an estimate of the necessary material; that the lumber was then brought and placed upon the premises for the purpose of reconstructing the stairway. It appears that the lumber remained unused for about five days; that relying upon the promise of the defendant to repair, and from necessity, the plaintiff continued to use the stairway; that about the fifth day after the ma
The defendant contends that the plaintiff was injured as a result of her own carelessness and negligence, and that relying upon a tort she is not entitled to recover. The plaintiff testified:
“I told him it would have to be kept in repair or I could not live there, and he said they would keep it in repair.”
Mr. De Graff, agent for the defendant, when asked about the agreement to make repairs, replied
“Not that I reme'mber of, except as I said before, that we would not make any repairs to it unless it was absolutely necessary to make it habitable.”
The fact remains that the plaintiff used and occupied the building as a residence; that thé defendant took and accepted her monthly rental; that it was necessary to use the stairway in going to and from the basement; that the plaintiff testifies that she notified the defendant of the condition of the stairway prior to the accident and that he promised to make the necessary repairs; that he actually sent a carpenter and bought the material for that purpose; that the lumber was purchased and placed upon the ground at leas! five days before the accident.
Among others, the court gave the following instructions :
“The question of what is a reasonable time is for the jury to determine. * *
“Defendant would have a reasonable time, after knowing or being notified of the repairs, being necessary, in which to have made them, before he could*229 be held responsible for injuries resulting therefrom. * *
“If you find from the evidence the accident complained of was in any degree owing to the want of due care and caution on the part of the plaintiff directly contributing to said accident, then your verdict must be for the defendant. * *
“If you find from the evidence that the plaintiff knew the steps were unsafe and out of repair, but did not know that the particular step which broke was out of repair, then it is for you to determine from the evidence whether or not the plaintiff in venturing on the step which broke, without investigating its condition, was exercising due and ordinary care for her own safety. The plaintiff is not entitled, knowing or having good reason to suppose she was incurring danger in so doing, to go upon the steps, relying on the defendant being responsible for the steps being safe; but must act in a reasonable and prudent manner.
“You cannot find a verdict for plaintiff in any sum unless you determine, first, that there was a contract between plaintiff and defendant, or defendant’s agent, that defendant would make the repairs on the stairway. Second, that the defendant or his agent, the Portland Trust Company, after being informed and knowing the existence of the defect in the stairway, and promising to repair the same, failed to use that degree of diligence which a man of ordinary prudence would have used under like circumstances to repair the defect. Three, that the defect of which defendant or his agent was so notified or informed and so neglected to repair, was the cause of plaintiff’s injury.”
We think the law of this case is laid down by the Supreme Court of Washington in Mesher v. Osborne, 75 Wash. 439 (134 Pac. 1092, 48 L. R. A. (N. S.) 917), where it is held:
*230 “In some of the earlier cases holding that an action of tort did not arise on a breach of the covenant in the case presented, the general expressions used would include the proposition that no such action could arise. But it is believed that, restricting those cases to the issue presented, there is nothing to exclude general harmony on the proposition where there is a covenant by the landlord to keep the premises in safe and tenantable condition, and the landlord has knowledge or notice of the existence of such defects as render the use of the property in the manner contemplated by the lease dangerous to the tenant, and the tenant, his guests or family, suffer personal injury therefrom after a reasonable time for making the premises sáfe, since such notice or knowledge, in the absence of contributory negligence, the landlord is liable to an action of tort therefor.”
“What condition is indicated by the chart, or what do you know from personal memory of the facts, as to her obeying directions, or as to her being refractory!”
Upon an objection to this question, counsel for defendant stated:
“Our object is to explain as far as possible to what extent the condition we find is due to the injury and to what extent it is due to other things. It would all bear on the good faith of the patient, and explain the results. ’ ’
The court sustained the objection, upon the ground that such matters had not been pleaded as an affirmative defense. The defendant did not offer the chart in evidence and did not offer to produce any evidence as to who kept the chart or made the entries thereon, whether the chart was authentic or the purposes for
“If the appellants were not allowed to prove their claims, they should have called witnesses, and stated to the court the testimony which it was expected would be elicited from them.”
After citing the above case with approval, the opinion in Columbia Realty Investment Co. v. Alameda Land Co., 87 Or. 277, 291 (168 Pac. 64, 68), lays down this rule:
“We think the better practice is to call the witnesses relied on and ask appropriate questions. If objections are sustained to these questions the time is ripe for an offer of proof.”
Assuming that the defendant could make this defense under general denial, there was no showing or offer as to what would have been the proof if the witnesses had been permitted to testify, and for such reason there was no error in sustaining the objection.
Every element of defense was fully covered by proper instructions and the vital question of fact was: What would be a reasonable time within which the defects in the stairway should have been repaired, after the defendant received notice of such defects? The jury found for the plaintiff. The judgment is affirmed. Aeeirmed. Adhered to on Rehearing.
Rehearing
On Rehearing.
(180 Pac. 510.)
In Banc.
This cause of action arose out of injuries received by the plaintiff, caused by the giving way of the basement steps in a house which she was renting from the defendant, precipitating her to the basement floor, and wounding her more or less seriously upon projecting nails.
The case has been once heard in Department No. 2, and now comes up for rehearing before the full court.
Former Opinion Adhered to.
On rehearing, for appellant there was a brief over the name of Messrs. Flegel, Reynolds & Flegel, with an oral argument by Mr. John W. Reynolds.
For respondent there was a brief over the names of Mr. W. R. Shively and Mr. J. G. Arnold, with an oral argument by Mr. Shively.
We are met at the threshold of the case by the urgent claim of defendant, that this is an action in tort, and that the tenant cannot recover against the landlord in such an action, or indeed at all, for personal injuries caused by a failure to repair, even where there is an agreement on the part of the landlord to repair, but that the only remedy of such tenant, is directly upon the contract, for the breach of the same, in which action (as is claimed) such a personal injury would be too remote and not within the contemplation of the parties.
In Hayes v. Mutual Life Ins. Co., 125 Ill. 626 (18 N. E. 322,1 L. R. A. 303), a tortious act is defined as,
* ‘ The commission or omission of an act by one, without right, whereby another receives some injury.”
It is sometimes defined as synonymous with “private wrong,” “private injury” or “civil wrong”: Rhobidas v. Concord, 70 N. H. 90 (47 Atl. 82, 185 Am. St. Rep. 604, 51 L. R. A. 381). Bishop, in his work on Noncontract Law, after defining it as a civil wrong inflicted otherwise than by a mere breach of contract, says:
“To be more nicely accurate, a tort is one’s disturbance of another in rights which the law has created, either in the absence of contract or in consequence of a relation which a contract has established between, the parties. ’ ’
In Rich v. New York Cent. etc. Ry. Co., 87 N. Y. 382, Judge Finch says:
“We have been unable to find any accurate and perfect definition of a tort. Between actions clearly ex delicto and those as clearly ex contractu there exists*234 what has been termed, a border land, where the lines of distinction are shadowy and obscure, and the tort and the contract so approach each other and become so nearly coincident as to make their practical separation somewhat difficult.”
Perhaps under our Code systems, we should not attempt to place too much stress upon a somewhat arbitrary and ill-defined distinction between torts and contracts. It is a theory of the Code procedure that a party shall have full redress for all legal wrong, whether the wrong results from a breach of contract or from á breach of more general law. It is obvious that many times, and in many cases the injury will depend partly upon contract and partly upon a tort or wrong. In an action against a carrier of passengers the right of the injured passenger depends en-. tirely upon his contract to be carried safely, and he could not recover without such contract either expressed or implied, and yet superimposed upon the contract is the wrongful and negligent breach, causing an injury to his person, which was not directly contemplated by the contract, and for which the contract provides no measure of damages. To say that the passenger must separate the two, and depend wholly upon the negligent wrong, on the one hand, or the mere breach of contract alone on the other, would be to deprive him effectually of a complete remedy.
It is true there are many authorities which can be cited against this view. A great many of these are presented in the very exhaustive brief of the learned attorneys for appellant. It may be that in mere numbers, the burden of authority is that way. But the law upon this point is in a state of change, and we think the better rule, and that declared by the majority of the later eases, sustains a recovery by a tenant against the landlord for personal injuries caused by a failure to repair where the landlord has directly promised and agreed to make the necessary repairs, and had notice of the dangerous condition.
The authorities are so numerous on each side that it would be unnecessary labor to attempt to segregate and compare them.
Among the very late cases supporting the rule as we have stated it are those of Mesher v. Osborne, 75 Wash. 439 (134 Pac. 1092, 48 L. R. A. (N. S.) 917), and Ehinger v. Bahl, 208 Pa. St. 250 (57 Atl. 572).
It is urged on rehearing that the Washington case, supra, does not really declare, this doctrine, but only quotes the same from the work of Shearman & Red-field on Negligence, but we think the court intended to make that quotation a part of its opinion. The court had already said:
“Where there is a general duty, even though it arises from the relation created by, or from the terms of the contract, and that duty is violated, either by*236 negligent performance or negligent nonperformance, a landlord may be held as for a tort. Between landlord and tenant, as in other relations, there is always the general duty to so use one’s own as not to injure another.”
And then the court, after reviewing the authorities, quotes, as it seems to us, with complete and expressed approval, the language from Shearman & Redfield, as follows:
■ “A carefully compiled and discriminating text, after noting-the hopeless conflict of the authorities and the hairsplitting distinctions indulged by some of the courts, uses the following language: ‘ * The law on the subject is in a state of transition. In some of the earlier cases holding that an action of toft did not arise on a breach of the covenant in the case presented, the general expressions used would include the proposition that no such action could arise. But it is believed that, restricting those cases to the issue presented, there is nothing to exclude general harmony on the proposition where there is a covenant by the landlord to keep the premises in safe and tenantable condition, and the landlord has knowledge or notice of the existence of such defects as renders the use of the property in the manner contemplated by the lease dangerous to the tenant, and the tenant, his guests or family, suffer personal injury therefrom alter a reasonable time for making the premises safé, since such notice or knowledge, in the absence of contributory negligence, the landlord is liable in an action of tort therefor. In those jurisdictions where damages' for personal injuries are held recoverable against the landlord for injuries caused by the want of repairs he had agreed to make, and of the necessity of which he had been notified, it is said that the nature of the covenant is such as naturally to create a reasonable anticipation that the neglect to perform it will probably be the pause of personal injuries being inflicted on the tenant, his guests, family, and servants; that the covenant gives rise to a corresponding duty either to exercise such supervision as may be necessary, or to*237 act with requisite promptness on notice, as the case may require; and that an action of tort is maintainable for the injury consequent on the neglect to perform it, the covenant being set up as a matter of inducement.
The Pennsylvania case, Ehinger v. Bahl, 208 Pa. St. 250 (57 Atl. 572), is almost exactly on all-fours with this case. There the plaintiff had discovered a crack in the building he was occupying, and had notified the defendant, who was the owner of the building, and who promised to have it fixed right away. She did not do so, but put off the repairing and was notified again, and again promised to take care of it but did not do so, and the building fell and caused a serious damage to plaintiff’s goods. The plaintiff was nonsuited in the court below, but the decision was reversed in the appellate court in a careful and well-considered opinion.
“Well, he looked at the steps and he said he would have them fixed immediately. ’ ’
Mr. De Graff, agent of the defendant, practically admits this, saying:
“When we were at the bottom (of the steps) I told her I would order them fixed right away, and that she should be careful in the meantime.”
<fMr. De Graff had his orders to repair everything that was a necessity.”
Under this evidence the jury might well find an agreement to repair whenever necessary to make the building safely habitable.
The plaintiff, testifying in regard to the original contract to make necessary repairs, says:
“I told him he would have to have the house kept in repair or I could not live there, and he said they would keep it in repair.”
And again in cross-examination:
“Q. What was necessary at that time to be done, they were willing to do to keep you as a tenant?
“A. Yes, they were willing to keep it in repair.”
It appears from the evidence that the defendant was receiving $25 per month for the use of the premises, and we think the jury could infer, that the agreement to fix these particular steps, referred back to the original contract and had reference thereto, and that the continued occupation by' the tenant, and the payment of the rent, was a sufficient consideration.
Upon this question the case of Ehinger v. Bahl, 208 Pa. St. 280 (57 Atl. 572), from the Pennsylvania Supreme Court, already cited, is directly in point, in which the court said':
“It is argued there was no valid contract to repair. We think there was a valid contract, and a good consideration for it; he was induced to remain because she promised to make substantial, possibly extensive repairs; she secured a desirable tenant who would have abandoned the property that day if she had not made*239 the promise; the promise was not to be performed in the indefinite future, but the same day it was made. It is argued there was no promise which bound the tenant. We think there is a reasonable inference of a promise which the jury might have drawn, that he was to remain and pay rent for at least a month longer; for, it should be noted, he was not bound to stay a day at the peril of himself, family and goods, and she promised to relieve him of the peril that very day. The mutual promises, if as alleged, constituted a sufficient consideration; but resting wholly in parol what they were and what the parties meant was for the jury.”
The case was analogous to the case of a servant who, finding a dangerous condition, notifies the master of that dangerous condition, and upon the master’s promise, returns to his work, depending upon the master to repair. In such cases it has been generally held that contributory negligence is a question for the jury.
“Q. What condition is indicated by the chart, or what do you know from personal memory of the facts, as to her obeying directions, or as to her being refractory?
“A. Well, she would remove the dressings from her legs when the nurse asked her not to — :
“Mr. Arnold (Interrupting): Just a minute. I do not understand that there is any carelessness or negligent treatment pleaded in this action at all, and I don’t think that would be competent under the plead-, ings in the case. I understand the purpose is to show she was careless and negligent in treating herself?
. “Mr. Reynolds: Our object is to explain, as far as possible, to what extent the condition we find is due to the injury and to what extent it is due to other things. It would all bear on the good faith of the patient, and explain the results.
‘ ‘ The Court: I think the rule of law is that you must plead that. Do not understand the court to say that you have not a right to show what her condition was; but if her condition was brought about by some treatment, you should state that, just the same as if you claimed her condition came from some inherent disease she had. That will be the ruling of the court. Objection sustained.
“Mr. Reynolds: I will save an exception.”
We do not think it was necessary to plead, that part of the injuries for which plaintiff was complaining, was caused by the subsequent act of the plaintiff, rather than by the original accident. This was not ‘ ‘ contributory negligence. ’ ’ It was simply an aifirma
This was the conclusion reached in the opinion of Mr. Justice Benson in Theiler v. Tillamook County, 81 Or. 277 (158 Pac. 804), where a similar question was involved, and with the reasoning of that opinion we are entirely satisfied.
This court has repeatedly held that before a party can take advantáge of an error of this kind, he must state to the court what he expects the answer of the witness will be. This is not only for the purpose of first advising the trial court, but it is also nec.essary so that this court, may know whether the answer excluded would have been favorable to the party offering it, and, therefore, would justify a.reversal and new trial. For instance, in this case it might be that in the event of a reversal and new trial this same witness being called and permitted to testify, might say that she knew nothing further, or that they were about to take
It will be noticed the court made no order excluding the answer of the witness already given, and there was no offer to SI19W that she could have testified to any further fact, or whether her testimony would have been favorable to the defendant.
In the case of Hill v. McCrow, 88 Or. 299 (170 Pac. 306), a question was presented almost exactly similar, and the record was much in the same condition. A witness having been asked if he had had a conversation with a certain Mr. Keyt, was asked:
“State to the court now what the conversation was.
“Counsel for plaintiff objected as incompetent, irrelevant and immaterial, and a matter after the transaction was closed. ”
Thereupon, counsel for defendant stated:
“If the court please, it is like this, they are claiming a W. E. Davidson & Co. was the owner of this note and Mr. Keyt was trying to arrange a disposal of that note to Mr. McCrow. That is what we wished to show. # * This, of course, occurred the day before Hill claims to have got the note.” '
The court sustained the objection, to which an exception was saved. Upon appeal the court said:
“The record does not disclose what the answer <jf the witness would have been had he answered. The offer is a general statement of the fact that it was expected to show, but it does not appear whether the evidence of the witness would prove such fact or not. We cannot say from the record that there was any material evidence excluded or that there was any prejudicial error.”
To the same effect is Kelly v. Highfield, 15 Or. 277 (14 Pac. 744); Strickler v. Portland Ry. L. & P. Co., 79
It is the opinion of á majority of the court that the defendant did not come within the rule thus so frequently laid down by this court, in showing that testimony favorable to the defendant. was actually excluded by the court.
“It is therefore necessary for the plaintiff to prove by a preponderance of the evidence that any injury or ailment from which she may be suffering, were caused by the defendant’s negligence before she can recover buy damages therefor, and if it should appear from the evidence that any of plaintiff’s suffering may be attributed to some other cause, than the negligence of the defendant; then she is not entitled to have such particular considered in your appraisement of damages.”
There being no reversible error, our former opinion is adhered to and the judgment is affirmed.
Former Opinion Approved and Judgment Affirmed.