33 Ind. App. 650 | Ind. Ct. App. | 1904
This action was commenced against one Thomas B. Hedekin. The appellee averred in her complaint that prior to October 19, 1901, she and her husband became tenants of Thomas. B. Hedekin, and occupied the house and premises until the last-named date; that at the time they rented the house there was a walk leading from the house to an outhouse in the rear of the lot, which walk was dangerous by reason of the boards of which it was constructed being broken and warped; that many of the boards constituting said walk were smooth and apparently safe upon their upper side, but said boards were in fact-rotten and decayed on their under surface, which fact was known to the appellee; that the said Thomas B. Hedekin, at the time the place was rented, agreed with appellee’s husband that he would from time to time, as required, make all necessary repairs to said premises, and keep the same in good repair, and that in consideration of said prom
The judgment in this cause has no ground upon which to stand. The complaint does not state a cause of action, whether regarded as proceeding on the theory of tort or contract. If in tort, the action would not survive against the personal representative of the deceased lessor, and if regarded as an action on contract, the measure of damages would be the amount paid for making the repairs. And it was incumbent upon appellee to make the repairs upon the refusal of the landlord to do so, and look to the landlord for the cost of the same. But the complaint seeks to recover damages solely for a personal injury to appellee growing out of the alleged failure of the appellant decedent to repair the premises which appellee and her husband occupied as tenants.
The decided cases in the courts of appeal cover every feature of this case. In Hamilton v. Feary, 8 Ind. App. 615, 52 Am. St. 485, this court said: “The appellee admits, in her complaint, that she knew of the existence of the excavation even before she took possession of the premises, and with such knowledge continued to occupy the property for the period of six months, though the appellant had, upon demand, failed and refused to make the repair which he had covenanted to make. The appellant could not have given the appellee any more information of the defect than
After the judgment in the above cited case was reversed and remanded, it was again tried and an appeal taken to the Supreme Court of this State. See Feary v. Hamilton, 140 Ind. 45. In the last cited case the court, by Monks, J., after stating the facts showing that the landlord had
Appellee’s complaint shows that she knew of the dilapidated condition of the walk upon which she was injured for more than two years prior to her injury. Her means of knowing of the defect was, at least, equal to that of the landlord, and, regardless of the holding that the action died with the person of the defendant, the opinions above quoted from furnish abundant reasons and authority for holding that an action based on the facts stated in the complaint could not have been maintained against the landlord in his lifetime.
The judgment is reversed.