Mark W. Morgan, an Infant, by Herbert N. Morgan, His Father and Next Friend v. James e.garris and Newcomb-Jones Realty, Inc.
307 F.2d 179
D.C. Cir.
1962
Check Treatment

*1 .179 ly handwriting would now have Present counsel Mrs. Teieher’s change say argument of us that the Government of address form false and the improper. jury was counsel before date birth on identification card jury speak eloquently guilty knowledge told the that Government counsel on part Cogdell was conviction two counts on first that Mrs. Teicher’s sought theory possession “that check in had been stolen.6 recently possession property study charge stolen Our as whole leaves for, being properly us accounted jury with firm conviction that the guilt.” presumption properly raise a We was every instructed on element expected precise dis assume he of the case. —without might judge cernment —that trial We find no error. jury of such instruct basis Affirmed. States, 94 U.S. cases Gilbert v. United 321, (1954), 215 F.2d 334 (2 Sahadi, United States 1961), judge

Cir. did not so. but the do

Instead, carefully adequately he ex

plained jury’s prerogative in terms in circumstantial and the evidence 4 reasonably to deduced ferences Aside from the fact therefrom. arguing respect prosecutor MORGAN, infant, Mark W. an exception Her- the first two counts and Morgan, bert N. his father and next asserted, point taken as to now friend, Appellant, argument as involved the made Gov “nobody ernment’s saw concession James E. GARRIS and question.” Newcomb-Jones him into the box in break mail Realty, Inc., Appellees. judge expressly trial limited the jury No. 16247. was en force eifect which arguments titled accord to of coun United States Court of sel. District of Columbia Circuit. Briefly recapitulated, Argued 22, the case Nov. 1961. totally presented by the Government was 31, May Decided 1962. give uncontroverted unless we are to appellant’s force to De some statement he taken the

tective Crockett had pocket from

check an unconscious. lying in

man some unidentified street. considered all other circum

When stances, explanation fabricated gives naturally properly rise knowledge.5 guilty inference More forged

over, purported- identification especially persuaded States, 5. Seeman v. United We See adequate jury (5 Cir.), denied, 620, exercised discernment cert. since Cogdell acquitted 80, (1938) ; the first two 59 S.Ct. L.Ed. 396 charged Epps States, counts which him with v. United steal abstracting ing (1946). mail and F.2d letter con taining Treasury check. Torres supra States, States, (9 Torres 6. Cf. United note United Cir. 1959), cert. denied 362 U.S. 80 S.Ct. (1960). Bray 4 L.Ed.2d 741 And see States, -, v. United (1962).

180

ington, brief, C., were on D. appellees. Chief Before Wilbur Miller, K.

Judge, and Fahy, Bazelon, Edgerton, Washington, Bur- Bastían, Danaher, sitting ger Judges, Circuit Wright, in banc. Judge.

EDGERTON, Circuit appellant, quite three a child not years old, fell off of his the back stairs areaway rented home into and was injured. appellees Danaher, the owner of Judge, Miller, Chief agent. and the rental Judges, dis- house owner’s Burger, Circuit Bastían charges suit them with sented. failing protecting proper to install a rail. Depositions only protec- showed single pipe tion and that handrail complained the agent. mother had child’s Municipal Court entered summary judgment defendants Municipal af- Court appeal. We allowed an firmed. were, thinkWe the defendants summary judgment. not entitled to Management Co., Whetzel v. Jess Fisher 108 D. Regulations Housing C. 2508. Bowles § Mahoney, v. 91 202 F. dangerous 2d involved a condition during that arose the term of the lease decided Commis of the District of Columbia sioners adopted the dis Although present cussed Whetzel. appellant’s counsel did not cite Whetzel Regulations or the rehearing until he asked for a Municipal Ap in the peals, we think the should ignored Municipal be when case on deals with the remand. “There may always exceptional par cases or prompt circumstances ticular reviewing appellate court, where injustice might'otherwise result, to con questions law were sider neither Sherry, Washington, D. Daniel I. Mr. pressed passed upon nor the court Hamlin, C., Mr. Albert T. whom agency or administrative below.” Hor Washington, C., brief, D. Helvering, 552, mel U.S. appellant. Mulligan 719, 85 L.Ed. Martell, Andrews, 375, 376, Washington, U.S.App.D.C D. Frank J. Mr. 29; Anderson, Richard F.2d Ward C., whom Messrs. W. Gali- U.S. Stewart, 48; Jr., 156, and William Wash- E. Schaff v. her * * * applied Claxton, Inc., unwise R. W. Young, 532; rele- Bullock v. benefit of available ruling evidence, (Munic.Ct. Apps.). vant by followed 118 A.2d Stage Lines, judge Virginia hearing Montgomery the trial after it.” Cf. *3 Al 191 F.2d 770. The dissent states there is no “ though to trial court ‘cannot hold a we dication in the failing issue an be in error to decide in the require Government intended land- to * * * put it civil not in a action’ before design pre- lords to to construction as de never it not follow that we can does year falling vent three old and children to a case issue remand cide such an or being depends on hurt. This what one de to the with directions [trial court] by by prevent” means “so to and as Stouper Jones, 109 cide it.” “falling and hurt.” Be that itas (con may, present ques- the do Judge Bazelon). curring opinion The tion protect required whether landlords are Supreme said, power “we have Court has areaway opening unpro- an judg not error in the to correct it, tected over stairs such as is shown such dis ment under review but make by Exhibit 2 in record Ex- us. position justice requires.” of the case as photograph hibit 2 is a scene Alabama, 600, 607, Patterson v. the accident. 79 L.Ed. 1082. This I know suppose of no reason to power. also has this U.S.C. § decision of our court in will this case 17(g), Our Rule analogous. 28 U.S.C. is somewhat cause “enormous reconstruction” of rent- provides not that “Points dwellings ed city, etc., in as the dis- presented according rules senting opinion states. This child did though court, disregarded, merely ground not unpro- fall to the off pass court, option, at notice and its unpro- tected This child fell off upon plain pointed or not out error steps open unprotected tected into upon.” relied areaway unprotected steps. underneath apparent This is from Exhibit I am brought Since the suit is confident such a condition is rare in this behalf, child’s immaterial whether city and that our decision will not cause negligent. parents not were were any reconstruction”, “enormous etc. Reversed and remanded to Munici- expressed As to fear pal the dissent Court. premises may of such owners Reg- rent to families with children if the Judge FAHY, (concurring). Circuit apply, ulation is I held believe families agree entirely opinion writ- with the with small children would be fortunate Edgerton by Judge majority ten they premises should be unable to rent dissenting opinion court. in such a condition as existed in this prompts this brief additional concur- danger case. great, to small children is rence. Moreover, and obvious. where Regula- Housing Section 2508 of the easily a condition does exist it can by no terms limited to expense, tions is means remedied small as was stairs,” de- “Interior and we should not done landlord in this case after dissenting now, cide our brethren the accident. do, bearing that it on this say am authorized Circuit Appellant trial, case. had no Judges Edgerton, Bazelon, Washington Regulation was not considered Wright join in the views above ex- McLaugh- trial lin, Co. court. See Hecht pressed. 212, 215, where we said: MILLER, Judge, K. Chief WILBUR DANAHER, present BASTIAN “for us to rule rec- regulation Judges, BURGER, dissent

ord whether or not the Circuit .182 * * * go down wouldn’t down. Munici opinion of the of the basis fell.” (D.C. and he lost his balance and A.2d Appeals,

pal areaway Judge child landed in basement 1961), dissent draft badly and was cut. prepared Prettyman,* when he original panel, dissenting member steps rail were follows: which is as workmanship. The defect materials or steps boy dry were and clean. The little my case on this brethren I differ played yard months in the rear Municipal Court affirm and would theory prior to the accident. The *4 Appeals. alleged plaintiff’s case, in the amended age off fell of 32 months A child some complaint, failed was the landlord home flight the rear of of the a stairs upon protecting proper “to install a rail father, in by parents. His his rented the said stairs.” Deposi- behalf, the his sued landlord. jurisdiction be- Under the law in this interrogatories taken and tions were fore our Fish- decision in Whetzel v. Jess papers Upon the asked and answered. Management Co.,1 firmly er it estab- was judge entered trial before him the thus that, contract, lished absent a landlord summary judgment the landlord. premises who surrendered control of to Appeals affirmed. Municipal Court The injuries a tenant not liable due was Morgans first and on the lived conditions, The to obvious not de- structural house, material; a semi-detached workmanship floors of second in or fective several entrance was deed, The rear rented. he not liable defects de- yard and was the during tenancy.2 level of veloping feet above the the There flight dozen by half a of about reached can as it be doubt that under the law rail, or steps. three iron An concrete then landlord not was this is liable in by treads, anchored the feet above four posts, this case. steps. A up of the side ran each In we held a of the Whetzel violation by occupied oth- apartment was basement Housing Regulations of the District of flight steps ran down A tenants. er might negligence per be Columbia either yard the level to entrance from the part se or evidence down-flight was apartment. This this urged landlord. is of the now underlay, to, partly adjacent partly in case at bar could landlord living Morgans’ up steps the quarters. To me liable under that doctrine. two negative propositions that conclusion. In Morgan top place point raised from the the first was not fell The child leading up his in court or even decision steps rear of the trial by Municipal Appeals. was witnessed The accident home. too late. The mother, in this fash- think came situation is it it who described injustice “[sjtanding of manifest or of in door” not matter She ion: injuries steps. hardship. coming up unusual consisted him and saw forehead, gash on the child’s a con- come the house wanted sure, requiring top step. one to nine- standing door siderable The back stitches, but no other hurt. She could teen opens toward out expenses go out-of-pocket total open and “asked him to father’s the door not * (1933); dissent, Judge 391, proposed Ma writing Bowles Since honey, par- 155, 202 F.2d 320 Prettyman not retired did denied, 935, rehearing (1952), ticipate cert. en bano. (1953) ; Jamieson 97 L.Ed. 719 S.Ct. 385, 282 F.2d 943 Lothrop, 101 & Woodward (1960). denied, cert. D.C. Co., App. Mortgage 2 L.Ed.2d 63 Inv. Harrison U.S. (1957); Moses, (1932); A.2d Lawler v. Fortner (Mun.Ct.App.D.C.1946). City Capital Co., Life Ins.

J83 prevented impeded have neither settled nor rule is well $100.00.3 child’s fall. points protective not be of law of this sort device appellate unless which would court have considered been effective would court; have presented up com- been a absent trial balustrade sides upgoing steps. injustice pelling or And circumstances of this is the clear and precise theory hardship.4 plaintiff’s exist No circumstances case. one, I But The rule a sound make here. is no such re- quirement. apply The function I do case. not see in this how the land- lord violating er- can be held to correct liable for re- quirement re-litigation, rors, Regula- not to afford de novo is not in the piecemeal when- tions. review is be avoided possible. ever repeat, forgot, lest it be arewe nothing But, discussing may, faulty I find opera- be that as it defects tion; talking re- we about basic con- government premises quires struction requirements to construct landlords *5 three-year-old protect child, from therefor. children as as his mother ex- falling plained, “lost down or off outdoor stairs. his balance” and fell. He “Stairways, Steps fell under entitled the handrail. section I find no intima- (Sec. pro- 2508) provides tion Porches” government guards openings, on require tective stairwell intended to land- design open porches, on “Interior lords stairs”. pre- construction as to dealing three-year-old vent falling section This is children from says nothing subject. out- about hurt. stairways steps. porch No is side opinion of the court in this matter child, case. The as volved in this will cause an enormous reconstruction photo testified, ex- mother as dwellings city. of rented in the New flight show, step top of a fell off the hibits stairways outside are constructed with Regulation simply steps. There is no protection view of small chil- prescribing the sort of measures falling. any dren from As casual ob- involved, e., i. feature here construction demonstrate, many servation will outside outside stairways throughout city, even to urges Appellant-plaintiff schools, churches, public sentence buildings, Regulation single protected by which “All stair in the reads: iron handrail openings side, balustrade or shall have a well each one as this was. So as far length guard along law, quite entire I disagree- other understand the open, unprotected any my side.” But that brethren, re-building ment with this application here. No required. no is Moreover, sentence and even guard along seriously, or other more opinion balustrade length court’s well-nigh either side of the stairwell constitute irresistible com- Morgan protected pulsion upon child. have would to refuse landlords tenancies through parents down fell from above with small children. Land- top open required If there had been well. parents are not lords to rent to side around both the balustrade Liability a solid of small children. for dam- stairwell, ages negligence the end of the because of the con- pre-trial $100.00, App.D.C. 230, (D.C.Cir. statement 3. Of the 243 F.2d 653 value,” ; Hardy 1957) as “reasonable $90.00 described v. Northwestern Fed. Sav. though “out-of-pocket Ass’n, ex> listed even & Loan 102 1957) (D.C.Cir. ; Metropolitan X>enses”. Corp. Broadcasting Lebowitz, 110 U.S. App.D.C. 101, Ambrogi, 67 F. 4. Baldi v. (D.C.Cir. 293 F.2d 524 1937); (D.C.Cir. Madison v. Phil 2d 845 1961); Geraghty Heigle, lips, (D.C.Cir. 1959). Rudberg, (D.C.Cir. 1958); Brown v. especially pertinent last-named is (D.C. 1948) ; Johnson, here. Cir. Osin v. 100 U.S. steps upon or from struction of burden, great fall small children necessary. unless not to undertaken many suspect rentable I owners voluntarily property assume will not

liability. genuine material of a no issue see duty legal

fact And I in this case. en- He was landlord violated. judgment. I would affirm.

titled to Edgerton Judge respect agree negligence allegation any

to part parents. In a suit behalf behalf) (not on their

of the child own is immaterial. *6 INC., corporation,

GIANT FOOD Petitioner, COMMISSION,

FEDERAL TRADE Respondent.

No. 16507. States Court of

United of Columbia District Circuit.

Argued March 1962.

Decided June 1962. Rehearing En

Petition for Banc Denied Sept. Banc En Rehearing Before

Petition the Divi- Sept. Denied sion Raymond Dickey, Washington, Mr. R. Bernard; C.,

D. whom Messrs.