Grace v. Williams , 36 Ohio App. 569 ( 1930 )

This case comes into this court on error from the court of common pleas of Hamilton county, wherein judgment was rendered for the plaintiff, Rose Williams, defendant in error in this court, upon a verdict, after remittitur.

The petition alleges that the plaintiff, Rose Williams, rented a room from Cecelia Grace, the owner of certain premises; that the plaster in said room was loose, liable to fall, and was in a dangerous condition; that the landlady promised to repair the defects the same being called to her attention; that, relying on said promises, the tenant remained, and on the 8th day of November, 1926, the plaster in the room fell and injured her, to her damage, all because of the defendant's failure and refusal to put said premises in proper repair.

The answer admitted ownership of the premises, and alleged that the roof of the house had been damaged by fire, and that the plaster thereby became loosened in the room occupied by the plaintiff; that previous to November 8, 1926, a part of the plaster had fallen, and that on said date a small part of the plaster still remained loose; that the plaintiff was warned of the condition pending repair, which the defendant was endeavoring to make; and alleged that the plaintiff was not a tenant, but a trespasser, having been ordered out of the premises because of nonpayment of rent. The answer otherwise was a general denial.

The evidence shows that Rose Williams had been a tenant of Cecelia Grace's for some time; that a fire occurred in the premises after the tenant had taken possession of the room, which did considerable damage to the roof of the house; that, thereafter, the plaster in the tenant's room became loose and ultimately fell, injuring the tenant; that the landlady promised to repair the premises after the defects in the plaster became apparent, but failed to do so. No new consideration was alleged or proved for such promise to repair.

The petition fails to state a cause of action and no liability was proved against defendant.

A motion was made at the close of the plaintiff's evidence for an instructed verdict, but this motion was not renewed at the close of all the evidence.

In view of the defect in the petition and the failure of proof, the court, under such state of facts, ought to have instructed a verdict at the close of the plaintiff's case for defendant, and the charge of the court was manifestly and prejudicially erroneous in submitting the case to the jury, there being no evidence of any liability on the part of the landlord.

Two rules of law are involved: First, the landlord is under no obligation to repair premises, if he has not covenanted to do so. 16 Ruling Case Law, 1030, Section 552; Goodall v. Deters,121 Ohio St. 432, 169 N.E. 443. Second, the promise to make repairs during tenancy must be supported by a new consideration. 16 Ruling Case Law, 1033, Section 553. "It has frequently been held that the landlord is under no obligation to make repairs, unless such a stipulation is made a part of the original contract, and that any subsequent promise to make repairs, founded merely on the relation of the parties, and not one of the conditions of the lease, is without consideration, and for that reason creates no liability."

In the case of Schiff v. Pottlitzer, 51 Misc. Rep., 611,101 N.Y.S., 249, the syllabus is as follows:

"Where, in an action by a tenant to recover for personal injuries caused without fault on her part by the fall of the kitchen ceiling, the evidence does not disclose the nature of the lease, the landlord is not liable, although, prior to the accident, his attention had been repeatedly called to the condition of the ceiling and he had failed to keep his promise to put it in proper condition, such promise being without consideration.

"In the absence of proof or an admission to the contrary, the presumption is that a lease of an apartment includes the ceilings of the rooms; and the mere fact that the landlord had, on several occasions, made some repairs and had promised to repair the ceiling before it fell, does not of itself warrant a conclusion that he retained control of the ceiling or that by the lease he was obligated to repair the ceiling."

See, also, note, 43 A.L.R., 1494.

For the reasons given, the judgment will be reversed, and judgment will be entered here in favor of the plaintiff in error.

Judgment reversed and judgment for plaintiff in error.

CUSHING, P.J., and HAMILTON, J., concur.