41 So. 976 | Ala. | 1906
— This suit xvas brought by the appellant against the appellee claiming damages by reason of the fact that the defendant leased to the plaintiff a certain house, in which there had been a person infected with a contagious disease known as “scarlet fever,” from which said house had become infected, and the plaintiff claims that the defendant concealed from the plaintiff the fact 'that said house had been so infected, and that as a result plaintiff’s infant daughter became
In addition to the legal points made on the pleading, the general defense was that although it was proved that there had been a case of scarlet fever in said house, yet, before leasing the premises to the plaintiff, the defendant had employed a skilled physician to have said premises thoroughly fumigated and disinfected, that it was fumigated by a skilled nurse under the direction of said physician, and the report made to plaintiff that it was disinfected before he leased it to the plaintiff. There was no dispute about the fact that scarlet fever is an infectious and contagious disease, that there had been a case of it in said house, and that the plaintiff’s daughter after moving into said house had said fever. It was proved that, by direction of the defendant, Dr. H. D. Westmoreland, who was a physician of 8 or 10 years’ practice, had given directions to Martha M. Gullette, who was a nurse of experience and skill, to disinfect the house; that said Martha M. Gullette was instructed to disinfect with sulphur and bichloride of mercury, that she burned the sulphur in the house for 24 hours,, and used 1-500 bichloride of mercury; that she had had experience with this and other infectious diseases at the Charity Hospital in New Orleans, and other places, that she considered the house free from contagion when she finished the fumigation; that the bathroom was fumigated by burning sulphur, and the walls and bath tub sprayed and washed with said bichloride of mercury. Said nurse testified that she washed the floor of the room where the patient had had scarlet fever after sweeping it, but could not say whether she scoured it, and that the floor Avas sprayed with bichloride of mercury; that she' did not remember whether she removed the window shades or not, that she did not remove the paper from the walls, that she had never known of any contagion remaining in a room fumigated as she did this one. It was shown that the doctor and the nurse reported to the
While one who rents or leases a house to another does not. thereby warrant the condition of the premises unless specially mentioned, the doctrine of caveat emptor applying, yet if there are defects known to the owper, rendering the premises unsafe, either from unseen dangers otherwise or from infection, the owner who conceals such dangers, and fails to communicate the knowledge of the same to the party to whom the premises are leased, he being ignorant thereof, is liable to the lessee for any damages resulting therefrom. The cases base the liability variously on fraudulent concealment, on the breach of the duty which the relation implies, etc., but not upon the principle of an implied warranty. Hence, great stress is laid in the cases referred to by appellant and others, on the necessity of knowledge of the defect or infection, in order to fix the liability on the lessor.—
In another case in the supreme court of Massachusetts, in which a party leased premises on which there was a vault emitting offensive and dangerous odors, and had employed his own servant to throw lime in, and nail boards over the vault, the court says that it is not enough that the landlord knows of the source of the danger unless also he knows, or common experience shows that it is dangerous. He is bound at his peril to know the teachings of common experience, but he is not bound to forsee results of which common experience would not warn him, and which only a specialist would apprehend (citing a number of cases.) The court goes on to hold that if the defendant knew the vault was dangerous, and by his own servant undertook to remedy it by “means which were ineffectual for that purpose, and which he knew, or ought to have known were ineffectual,' he cannot escape liability by employing a servant to do the work,” because he was responsible for the act of his servant. The court also refers to a previous case in which a man, over whose hay white lead had been spilled,- undertook himself to separate it, and sold some of the hay which .proved injurious, and it was held that he was liable because his belief in the success of his remedy was merely conjectural and uncertain.—Martin v. Richards, (Mass.) 29 N. E. 591, 593.
The supreme court of Tennessee, after a thorough examination of this subject, thus summarizes the result: “We think the great weight of authority is that if a landlord lease premises which are at the time in an unsafe and dangerous condition, he will be liable to his tenant for damages that may result, if he knows the fact and conceals it, or if by reasonable- care and diligence he could have known of such dangerous and unsafe condition, provided, reasonable care and diligence is exercised by the tenant on his part,” (citing a number of authorities). The court proceeds to remark that “the liability does not arise upon any-question of contract, but upon
In the case of Cutter v. Hamlen, (Mass.) 18 N. E. 397, 1 L. R. A. 429, the landlord was sued for damages resulting from his having rented a house infected with diphtheria, and having defective drains. There was evidence that the house had been fumigated by the board of health, and indorsed O. K. by the inspector, and the court says: “If the case stopped there, we should be of opinion that the landlord' was justified in assuming that the house had been disinfected, and that the requirements of Minor v. Sharon, supra, were satisfied.”—Page 398 of 18 N. E. (1 L. R. A. 429). But as there was the additional defect that the drains were known to be defective, and also that there were specific statements, the matter was.held to properly have been submitted to the jury.—Page 399 of 18 N. E. (1 L. R. A. 429).
In the case now under consideration, the only defect suggested was that there had been a case of scarlet fever in the house. It was shown without contradiction, that the.disinfecting of the house was intrusted by the owner to an experienced physician and a trained, experienced, and competent nurse. While there is testimony by other experts giving their opinion that there were better means of disinfection than were used, yet there is not a word of testimony questioning the experience or competency of the physician and nurse to whom the work of disinfecting the house was committed. Dr. Wheeler, the health officer, testified that when infectious diseases were in any house, it was the duty of “the attending physician and the head of the family, or the owner of the
The judgment of the court is affirmed.
