Lang v. Henderson , 1948 Tex. App. LEXIS 1301 ( 1948 )

This is a suit for personal injuries and personal property damage to appellant Glenn Lang, Jr., and his wife Margaret Lang, resulting from a fire at a two-story, eight-unit apartment house owned, managed and controlled by appellee Corenne Henderson. In the apartment occupied by appellant and his wife was a coil-type automatic gas water heater to furnish hot water to each of the apartments in the building. It was the only water heater in the building, its use was common to all tenants, and under appellee's control. Appellant and his wife occupied the premises from February 1, 1946 to December 20, 1946 under oral contract with appellee to supply all utilities, which included hot water facility. The fire was caused by ignition of escaping gas from defective condition of the water heater; and, we think, the evidence introduced by appellant would have entitled appellant to submission of issues on the question of the landlord's negligence in failing to safely repair the heater or provide another heater safe and sufficient for the joint use of all the apartments, to avoid incurring injuries. Trial of the cause was had to a jury and at conclusion of appellant's testimony, the court peremptorily instructed a verdict in favor of defendant; accordingly entered judgment.

Where a landlord retains control of premises, as apartments, hotels and the like, and has access to appliances furnishing facilities in common to all tenants, invitees or guests, etc., and knows the defective condition of a portion of the demised premises under his control, it is his duty, in absence of contract to the contrary, to keep the premises in safe condition; and he is liable in a tort action for injuries occurring to such occupants resulting from his failure to keep the premises or utilities safe. However, "Proof being made that the tenant had actual knowledge of the dangerous condition of the premises, it is to be concluded primarily that he is not entitled to recovery, for very evidently he was in a better position than was the landlord to avert the injury." 27 Tex.Jur. p. 350 sec. 207; Pollack v. Perry Tex.Com.App., 235 S.W. 541, 543. Thus it is, if the negligence or laches of a tenant, invitee or guest, etc., causes or contributes to the cause of injury or damage to himself and property from want of suitable repairs or replacements, he cannot recover. He must use reasonable care and, certainly, some effort to prevent resulting damage to himself. Apprehension of danger by a tenant was considered by our Supreme Court in Pollack v. Perry, supra, in which the court said: "The defect was open and obviously apparent. She considered it dangerous. She ``didn't notice that place,' nor did she ``pay any mind to that' at the time the plank broke. These manifest a lack of care and attention on her part, amounting to contributory negligence barring recovery." (Citing authorities.) The law does not require a landlord to take better care of a tenant than the tenant would take of himself. So where a tenant knows, as here, of the dangerous condition of the premises for a sufficient period of time, and continues to remain as tenant and use the premises with such defective and dangerous appliances, without showing freedom from responsibility, a recovery for damages is not sustainable against the landlord even though the landlord was negligent in respect to the dangerous instrumentality causing the damage or injury, or had previously promised to make repair and failed to do so. Baermann v. Bradix, Tex. Civ. App. 5 S.W.2d 869. Even though it be the duty of a landlord to keep in reasonably safe condition the portions of his premises under his control for common use of his tenants, the right of the tenant to recover for injuries may be barred by reason of contributory negligence.

Appellant's testimony is, in effect, that he was a tenant of appellee, the rental contract providing that he was to pay $7.50 per week for the apartment he and his wife occupied, with utilities, including hot water, furnished. The facility for furnishing hot water was an automatic coil-type gas heater located in appellant's kitchen and used in common by all tenants of the eight units. The fire originated at the water heater, spread over the apartment, causing the damages sought in this suit. There was no express contract or covenant on the part of appellee to repair the heater or to keep same in repair. However, appellee did retain a key to appellant's apartment, had access to the water heater, exercised supervisory control over the same, made repairs thereon and caused repairs to be made by others. The heater was not specifically included in appellant's lease contract, other than furnishing of hot water; and appellant exercised no special control over the heater. It was in common use by all the tenants to furnish hot water to their respective apartments.

The fire in question occurred on the morning of December 20, 1946. Appellant testified that he first reported the smell of escaping gas from the heater to appellee some six or eight weeks prior to the fire, and some two weeks prior thereto had notified appellee, as well as having notified the gas company's agent of the escaping gas; and, at that time, the gas people came and turned the gas off from the heater, and when he notified appellee of that fact, she said: "You kids have certainly fixed me." Soon thereafter, under revealed circumstances, the gas was turned back on by appellee, but the escaping gas was not checked. In response to questions, appellant answered as follows:

"Q. Mr. Lang, I will ask you did anything else happen in connection with that water heater following the occasion in which those matters were stated by the defendant? A. Well, she didn't even have a man to come out and fix it.

"Q. How many days before the fire was this? A. Well, the fire happened on December 20 and this was about December 4th.

"Q. All right; nothing then happened regarding the water heater between December 4 and December 20? A. Not that I know of.

"Q. During that time did you continue to smell gas in your apartment? A. Yes.

"Q. Did you complain about it during the time between December 4 and December 20? A. Yes. * * *

"Q. Did you report to the defendant personally about the condition of that water heater any other time than the 4th? A. Yes. * * *

"Q. Do you remember what she told you in response? A. She didn't say anything about it. She said she would see about it, just like she always did.

"Q. Did she see about it then? A. No, she didn't.

"Q. Between that date and the date of the fire did anybody to your knowledge come around there and do any work on that water heater? A. No. No one done any work on that water heater except her, that I know of.

"Q. She did some work: on it? A. Yes. * * *

"Q. Mr. Lang, did you report the condition of that water heater to Mrs. Henderson at any other time than this time you just related about? A. No, I didn't. * * *

"Q. Do you remember whether or not, Mr. Lang, on the night of the 19th you could smell gas in that apartment? A. Yes, you could, very definitely.

"Q. And did you do anything to relieve that condition? A. No, I didn't.

"Q. Do you sleep with the windows open or closed in your apartment? A. We slept with the doors closed between the kitchen and our bedroom, and we left a window crack so the gas could get out. * * *

"Q. Mr. Lang, going back for a minute, on the occasion of your smelling gas in room in your efficiency apartment, did you follow the gas? Did you trace it? A. Well, you could smell it. You could tell where it was, where it started. * * *

"Q. Was the smell of the gas any worse immediately prior to the occasion of the fire than it was a month and a half before the fire? A. Three or four days you could hardly stand it in there. The fumes hurt your eyes so bad that whenever you stood up in the room your eyes would water.

"Q. Three or four days? A. Three or four days prior to the fire."

Mrs. Lang, wife of appellant, gave pretty much the same testimony as did her husband, supplemented slightly to the effect that she told her husband about two or three weeks before the fire that he would have to report the escaping gas to Mrs. Henderson; that she (Mrs. Lang) couldn't stand it; that she was deathly afraid of it.

Evidently appellant and his wife knew that the water heater was out of repair, and that the escaping gas therefrom was calculated to make the heater a dangerous instrumentality to cause injury and damage. But for more than three weeks before the fire they did nothing to escape responsibility for their negligence or laches in failing to use reasonable care to prevent injury and damage, amounting to contributory negligence barring recovery. The duty of foreseeing injury from such known defects and dangerous gas appliances as disclosed from this record is the extent imposed by law upon appellant. Such, we think, failed to justify a submission of the case to the jury, and the action of the trial court in peremptorily instructing verdict for the defendant should be sustained. It will be so ordered.