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, 113 U.S. App. D.C. 222, 1962 U.S. App. LEXIS 4953

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 31, 1962
• Docket: 16247_1
• Status: Published

Opinions

EDGERTON, Circuit Judge.

The appellant, a child not quite three years old, fell off the back stairs of his rented home into an areaway and was injured. The appellees are the owner of the house and the owner’s rental agent. The suit charges them with negligence in failing to install a proper protecting rail. Depositions showed that the only protection was a single pipe handrail and that the child’s mother had complained to the agent. The Municipal Court entered summary judgment for the defendants and the Municipal Court of Appeals affirmed. We allowed an appeal.

We think the defendants were, not entitled to summary judgment. Whetzel v. Jess Fisher Management Co., 108 U.S.App.D.C. 385, 282 F.2d 943. D.C. Housing Regulations § 2508. Bowles v. Mahoney, 91 U.S.App.D.C. 155, 202 F.2d 320, involved a dangerous condition that arose during the term of the lease and was decided before the Commissioners of the District of Columbia had adopted the Housing Regulations discussed in Whetzel. Although the present appellant’s counsel did not cite Whetzel or the Regulations until he asked for a rehearing in the Municipal Court of Appeals, we think the Regulations should not be ignored when the Municipal Court deals with the case on remand. “There may always be exceptional cases or particular circumstances which will prompt a reviewing or appellate court, where injustice might'otherwise result, to consider questions of law which were neither pressed nor passed upon by the court or administrative agency below.” Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 85 L.Ed. 1037. Mulligan v. Andrews, 93 U.S.App.D.C 375, 376, 211 F.2d 28, 29; Ward v. Anderson, 93 U.S.App.D.C. 156, 208 F.2d 48; Schaff v. R. W. Claxton, Inc., 79 U.S.App.D.C. 207, 144 F.2d 532; and see Bullock v. Young, 118 A.2d 917, 919 (Munic.Ct. of Apps.). Cf. Montgomery v. Virginia Stage Lines, 89 U.S.App.D.C. 213, 191 F.2d 770. Although we “ ‘cannot hold a trial court to be in error in failing to decide an issue not put before it in a civil action’ * * * it does not follow that we can never decide such an issue or remand a case to the [trial court] with directions to decide it.” Stouper v. Jones, 109 U.S.App.D.C. 106, 109, 284 F.2d 240, 243 (concurring opinion of Judge Bazelon). The Supreme Court has said, “we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires.” Patterson v. Alabama, 294 U.S. 600, 607, 55 S.Ct. 575, 79 L.Ed. 1082. This Court also has this power. 28 U.S.C. § 2106. Our Rule 17(g), 28 U.S.C. is somewhat analogous. It provides that “Points not presented according to the rules of the court, will be disregarded, though the court, at its option, may notice and pass upon a plain error not pointed out or relied upon.”

Since the suit is brought on the child’s behalf, it is immaterial whether his parents were or were not negligent.

Reversed and remanded to the Municipal Court.