Anderson v. Robinson

62 So. 512 | Ala. | 1913

ANDERSON, J.

In the cáse of Morgan v. Sheppard, 156 Ala. 408, 47 South. 147, this court by the present writer, discussed the obligation and liability between landlord and tenant, their duties and liability to each other as well as to third persons, and it was there stated, among other things, in speaking of the liability of a landlord for injuries caused by defects in the premises to the tenant, his family, servants, or guests, as distinguished from third persons: “The rule, however, of the liability of the landlord for renting premises in such a dangerous condition as to constitute a nuisance, does not exist in favor of the tenant, his servants, guests, or others entering under his title. * * As to them, in the absence of a covenant to repair, he is only liable for injuries resulting from latent defects, known to him at the time of the leasing, and which he conceals from the tenant. — 24 Cyc. 1114, and cases cited in note 50; Thompson on Negligence, § 1130, 1131. If the defect is obvious at the time of the letting, the tenant takes possession of the premises as he found them, and the landlord would not be liable for injuries resulting from said obvious defects to the tenant, his family, servants, or guests.” It may be true that in stating the rule we were overcautious in confining it to cases in which there was no covenant to repair, but we did not hold that such a covenant would change the rule of liability, and express ly pretermitted the question further on in the opinion in dealing with count four of the complaint in said case. In the case at bar, however, some of the counts set up a covenant to repair when the lease was made and as a, part of the consideration of same, but it seems from the great weight of authority that said covenant does not increase the liability of the landlord or. change the rule above set forth as to his liability in tort to the tenant, his family, servants, or guests for injuries caused by virtue of defects in the rented premises. In other words, it seems settled by the weight of authority that the landlord is not liable in tort for injuries to said class, whether there be a covenant to repair or not, unless the defects' existed at the time of the letting, were known to him, and which he concealed from the tenant. This identical question has been decided in line with the present holding in the case of Davis v. Smith, 26 R. I. 129, 58 Atl. 630; 66 L. R. A. 478, 3 Ann. Cas. 832, and note; 106 Am. St. Rep. 691, and note. See, also, Dustin v, Curtis, 74 N. H. 266, 67 Atl. 220, 11 L. R. A. (N. S.) 504, 13 Ann. Cas. 169; Miles v. Janvrin, 196 Mass. 431, 82 N. E. 708, 13 L. R. A. (N. S.) 378, 124 Am. St. Rep. 575. The ruling of the Rhode Island court in the case of Davis v. Smith, supra, that a landlord who has agreed with his tenant to make repairs is not liable in tort to a member of the tenant’s family for personal injuries from the landlord’s neglect to repair, accords with the general rule. — Shackford v. Coffin, 95 Me. 69, 49 Atl. 57; Brady v. Klein, 133 Mich. 422, 95 N. W. 557, 62 L. R. A. 909, 103 Am. St. Rep. 455, 2 Ann. Cas. 464; Boden v. Scholtz, 101 App. Div. 1, 91 N. Y. Supp. 437; Steltz v. Van Dusen, 93 App. Div. 358, 87 N. Y. Supp. 716; Mitchell v. Stewart, 187 Pa. 217, 40 Atl. 799; Hedekin v. Gillespie, 33 Ind. App. 650, 72 N. E. 143; Tuttle v. Gilbert Co., 145 Mass. 169, 13 N. E. 465; Collins v. Karatopsky, 36 Ark. 316; Taylor on Landlord & Tenant, 175a; Wood on Landlord & Tenant, 921. This is not only the American but the English rule as well. — Courteneay v. Earle, 10 C. B. 73; 70 E. C. L. 73. None of the counts in plaintiff’s complaint, to which demurrer was sustained, except perhaps count 9, brought her case within the protection of the rule authorizing a recovery for the injury set out, and the trial court did not err in sustaining the demurrers to all of said counts except 9.

While there may have been error in sustaining the demurrer to count 9, it is so similar to count 5, to which the demurrers were overruled, that the plaintiff got the benefit of all evidence under said count 5, which could have been offered under count 9, and this error was without injury. — Bessierre v. Ala. Co., 179 Ala. 317, 60 South. 82; Bradley v. L. & N. R. R. Co., 149 Ala. 545, 42 South. 818; Henderson Co. v. Hinson, 157 Ala. 640, 47 South. 717. The case of Finney v. Steele, 148 Ala. 197, 41 South. 976, 6 L. R. A. (N. S.) 977, 12 Ann. Cas. 510, cited by appellant, is in conformity with, rather than opposed to, the general rule heretofore laid down; and, while it quotes from the case of Hines v. Willcox, 96 Tenn. 148, 33 S. W. 914, 34 L. R. A. 824, 54 Am. St. Rep. 823; Wilcox v. Hines, 100 Tenn. 538, 46 S. W. 297, 41 L. R. A. 278, 66 Am. St. Rep. 770, which places a liability in tort upon the landlord if he knew of the defect or by ordinary care should have known of it, and conceals it from the tenant, we expressly declined to commit this court to said doctrine, but merely cited it as stating the strongest and most extreme limit to which a court has gone in fastening liability upon the landlord. There are a few other cases, not cited by appellant, which extend the liability beyond the general rule, but they are opposed by the weight of authority in England and America.

The judgment of the city court is affirmed.

Affirmed.

Dowdell, C. J., and Mayfield and de Graffenried, JJ., concur.