Mrs. Ciaccio claims ?10,000 damages of defendant for that the steps leading from the kitchen to the yard of the premises leased by her husband from the defendant, where she and her husband resided, broke down under her weight, causing her to fall and fracture her left arm; that the said steps were too steep, improperly adjusted to the building, of lumber too thin tо-support the weight of an ordinary person, and that the tread which gave way as she stepped upon it was cracked, worn, and weakened, and dangerous and unsаfe; that defendant had been notified of the dangerous condition of said steps, and had repeatedly promised to have same rebuilt, but constantly failed to do so; that the repairing or rebuilding of said steps in order to make same reasonably sound and safe were such repairs as under the law the landlord was under the obligation to make.
An exception of no cause of action was sustained, and plaintiff’s suit dismissed.
Two reasons are assigned in support of this exception: First, that plaintiff was guilty of contributory negligence by continuing to use the steps after she had become aware of their dangerous condition. Second, that she derived her right to be on the premises through her husband, the lessee, and therefore could have no better right than he would have had if the injury had been to him, and that he in such case would have had no right of action, because he would himself have been at fault in not having caused the repairs to be made; the law having authorized him to do so and to deduct the expense frоm the rent.
That contention goes against the settled jurisprudence, expressed in Lewis v. Pepin,
“The failure of the lessor to make repairs will not sustain a claim for damages by the lessee, when the rent is sufficient to enable the lessee to make them, because, in such case, the lessee is authorized to make them himself and to deduct the cost from the rent.”
The repairs thus spoken of are those which may be paid for out of the rent, and therefore they are those which the lessor must make, and not those which are expressly mentioned in the Code as having to be made by the lessee, for the latter are not to be paid for out of the rent, but must be paid for by the lessee himself out of his own pocket.
But does the wife in such a case have tо claim through her husband, the lessee, and are her rights to be measured by his? In two cases it has been so held: Brodtman v. Finerty,
“The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construсtion.”
And in those two eases the court lost sight also of the decision in Schoppel v. Daly,
We know of no provision of law making an exception to said articles 2315 аnd 2322 by which their scope should be limited so as not to include the members of a lessee’s family or the guests or other persons on the leased premises by invitation of the lessee. As to a person other than the wife the scope of the article was so extended in Cristadoro v. Von Behren,
That these persons'do not occupy a contractual relation with the lessor is well illustrated by the fact that at common law the right of action which is accorded to them in cases where the lessor has covenanted to keep the premises in repair is not based upon the existence of a contractual relation between them and the lessor, but distinctly and sоlely upon “the theory of an avoidance of a circuity of action.” Note,
A lessee who has suffered injury from a defect he knew of, and could have remedied at the expense of the lessor, has to a large extent himself to blame; he has contributed to his injury; the maxim “volenti non fit injuria” may to some extent be applicable to him; whereas a member of his family or a guest upon the premises at his invitation,
Our conclusion is that we must overrule the said two cases in so far as they identify the wife with the husband in that manner. And in so doing we have the satisfaction of knowing thаt this was the view adopted by the District Court of the United States for this judicial district when presided over by Judge Saunders, one of the ablest lawyers this state has produced and perhaps the most profoundly versed in the civil law. See Frank v. Suthon, supra. We repeat here what was said in Cristadoro v. Von Behren, supra, that the line of cleavage under the said article 2322 is not between those who dwell inside and those who dwell outside, or happen to be inside or outside, of the house, but between those who have and those who have not a contractual relation with the less- or. The French authorities are not clear on this point, though, we must admit, they seem to assume that the article has application only to “neighbors or passengers.” AVhy this should be so, they give no reason; and in the Von Behren Case French decisions are cited to the contrary. But even if this restrictive interpretation were proper under the French Code, it would not be proper under ours, for we have an article providing specially for injury to “neighbors or passengers” from the ruin of buildings; and if article 2322 were thus restricted to “neighbors and passengers” it would be made simply to repeat what had already been sаid, in a previous article of the Code, and thus would be robbed of all utility. It would be made to say something it has not said, and which had already been said in express terms in a previоus article. Thus:
“Art. 670. Every one is bound to keep Ms buildings in repair, so that neither their fall, nor that of any part of the materials composing them, may injure the neighbors or passengеrs, under penalty of all losses and damages, which may result from the neglect of the owner in that respect.”
The judgment appealed from is set aside, the exceрtion of no cause of action is overruled, and this case is remanded to be proceeded with according to law. The defendant to pay the costs of this appeal.