Howell v. Schneider
24 App. D.C. 532
D.C. Cir.
1905
Check Treatment
Mr. Chief Justice Shepard

delivered the opinion of the Court:

1. There is no covenant in the contract of lease which the lessees accepted in this case, and the law is well settled that there is no implied warranty in the letting of a house that it is safe and fit for occupation. Doyle v. Union P. R. Co. 147 U. S. 413, 423, 37 L. ed. 223, 228, 13 Sup. Ct. Rep. 333. In the absence of an express warranty the rule of caveat emptor applies, and it is for the lessee to make the examination necessary to determine whether the premises are in safe condition and adapted to the purposes of his occupation. Doyle v. Union P. R. Co. 147 U. S. 413, 423, 37 L. ed. 223, 228, 13 Sup. Ct. Rep. 333; Cowen v. Sunderland, 145 Mass. 364, 1 Am. St. Rep. 469, 14 N. E. 117; Booth v. Merriam, 155 Mass. 521, 30 N. E. 85; Franklin v. Tracy, 25 Ky. L. Rep. 1409, 63 L. R. A. 649, 77 S. W. 1113; 18 Am. & Eng. Enc. Law, 2d ed. pp. 215, 216, and cases cited.

2. Passing by the question whether the parol evidence of the plaintiffs tending to show a promise to make repairs is admissible, in view of the fact that they subsequently accepted the written lease without objection, we are of the opinion that it does not furnish ground for the action. After an inspection of the premises the plaintiffs indicated certain repairs and improvements that were needed or desired, and these were made to their satisfaction. These had no relation to the water box or other closets fixtures. To give this promise and performance the effect of a special warranty covering, not only the improvements pointed out, demanded, and made, but also the complete safety of the premises in other respects, and their fitness for the general uses of occupancy, would be unreasonable, and the settled principles of the law of landlord and tenant will not warrant it. As the injury did not result from any of the improvements made, it is unnecessary to consider what would be the *548liability of tbe defendants for the unskilfulness of their contractors had they undertaken to reconstruct or repair the closet fixtures, either at the request of the plaintiffs or of their own motion.

3. There is an apparent exception to the general rule before stated that seems well established also. Independent of the ordinary legal relations of landlord and tenant,' the former owes a duty to the latter that is imposed by a general principle of the common law. He must neither misrepresent the condition of the premises, nor conceal from the tenant knowledge of defects attended with danger to the occupants. Where he has knowledge of such defects which are not open to the observation of his lessee, it is his duty to reveal them in order that the latter may be able to guard against injury from them.

While the failure to reveal such conditions may not constitute actual fraud or misrepresentation, it may, in a particular case, amount to such culpable negligence of duty as to afford ground for an action against the lessor in case the lessee sustains injury therefrom. The principle referred to, which has been applied to the ordinary letting of premises, as in this case, is “that one who delivers an article which he knows to be dangerous to another ignorant of its qualities, without notice of its nature or qualities, is liable for any injury reasonably likely to result, and which does result.” Cowen v. Sunderland, 145 Mass. 364, 1 Am. St. Rep. 469, 14 N. E. 117; Cutter v. Hamlen, 147 Mass. 471, 474, 1 L. R. A. 429, 18 N. E. 397; Cesar v. Karutz, 60 N. Y. 229, 19 Am. Rep. 164; Maywood v. Logan, 78 Mich. 135, 18 Am. St. Rep. 431, 43 N. W. 1052; Kern v. Myll, 80 Mich. 525, 8 L. R. A. 682, 45 N. W. 587; Lynch v. Ortlieb, 70 Tex. 727, 8 S. W. 515.

Clearly plaintiff’s case does not fall within this exception, because there is nothing in the evidence tending to show that the defendants had actual knowledge of the unskilful construction, or dangerous condition, of the water box, or made any misrepresentation in respect of it.

4. The appellant’s contention goes further than this, and asserts the liability of the lessor in those cases, also, where he *549might have obtained knowledge of the dangerous defect by the exercise of ordinary diligence in the inspection of his premises.

We cannot accept this as a sound principle of law applicable to the relations of the parties in this case.

It is, in our opinion, opposed to the views expressed by the Supreme Court of the United States in the case before cited. Doyle v. Union P. R. Co. 147 U. S. 413, 424, 37 L. ed. 223, 228, 13 Sup. Ct. Rep. 333.

The governing principle of that decision and of those cited with approval in the opinion of the court is, that no action lies by a tenant against a landlord on account of the condition of the premises in the absence of an express warranty or of active deceit. The mere, fact that a careful inspection of the premises would have disclosed the defect is not sufficient. The tenant is charged with that duty on his own behalf. See Bowe v. Hunking, 135 Mass. 380, 46 Am. Rep. 471; Keates v. Cadogan, 10 C. B. 591, and cases before cited.

The appellants rely upon some decisions of the supreme judicial court of Massachusetts, later than those reviewed and approved in Doyle v. Union P. R. Co. 147 U. S. 413, 424, 37 L. ed. 223, 228, 13 Sup. Ct. Rep. 333, as carrying the doctrine of liability to the extent contended for by them. Cutter v. Hamlen, 147 Mass. 471, 474, 1 L. R. A. 429, 18 N. E. 397; Lindsey v. Leighton, 150 Mass. 285, 15 Am. St. Rep. 199, 22 N. E. 901. We need only examine the first of those cases. It was an action for deceit in letting a house that had been infected with diphtheria. Eight months before the plaintiff took the house a child of a former tenant had died in it of that disease. It was shown that the landlord knew this, but it was shown by him that the board of health had thereafter fumigated the premises and indorsed the certificate of inspection as correct. The court said: “If the case stopped here we should be of opinion that the landlord was justified in assuming that the house had been disinfected.” But the case was held one for the jury on the ground that the condition of the drainage system of the house, within the knowledge of the landlord, was such as to put him upon notice that the danger of infection remained. *550The expressions in that case, and in the other, upon which the appellants rely, to the effect that a landlord may be liable in an action for injuries resulting from dangers of the existence of which he ought reasonably to have known, are founded on evidence quite different from that under consideration in this case.

Interpreted by the evidence, they are nothing more than applications of the familiar principle that knowledge may not only be direct and complete, but may consist, also, of the knowledge of facts that, under the surrounding circumstances, would reasonably and justly put one upon inquiry.

The evidence in this case furnishes no ground for the application of that principle. The water box or flush tank had been substituted for one of older- and different construction some two years before, at the request of a former tenant, and had been used with safety by him and the members of his household. The unskilful manner of its attachment to the plugs in the wall was concealed from view, and nothing had called the landlord’s attention to it. It is true that it had become slightly detached from the wall, but this condition was not known to the landlord. It was the duty of the tenants, as we have before seen, to make an examination of the premises to determine whether they were in a safe condition and fit for their occupation. The defective construction of the water box was equally open to their observation as to that of the landlord. There was nothing more to charge him with actual knowledge than to charge them. They not only failed to discover the defect upon their inspection, but the members of a large family used the closet constantly for more than a week without its discovery.

We are of opinion that the court did not err in directing a verdict for the defendants, and the judgment thereon must be affirmed, with costs. It is so ordered. Affirmed.