187 S.E. 556 | N.C. | 1936
Civil action to recover damages for death of plaintiff's intestate, alleged to have been caused by the negligent failure of defendants to repair leased premises in breach of covenant to repair, or to give notice of known defects.
In September, 1933, plaintiff's intestate and D. D. Dudley leased from P. H. Williams and Mrs. Eldora Sharber a three-story brick building in Elizabeth City, known as the Kramer Building, for the purpose of conducting a retail hardware business therein, under the name of Carolina Hardware Company. "The contract was oral. They rented the building at $35.00 a month in advance and they were to do all the necessary repairs."
Adjoining and bounding the Kramer Building on the north was the Flora Building. The roof of the Flora Building was 10 or 12 feet higher than the roof of the Kramer Building, and, by permission of the owners, there was superimposed upon the top of the northern wall of the Kramer Building a "parapet wall" from 8 to 14 feet in height.
On 10 February, 1934, the Flora Building was destroyed by fire, and the parapet wall, above mentioned, was left standing in a weakened and damaged condition.
On 20 March, 1934, during a severe windstorm, a section of this parapet wall, near the center and approximately ten feet square, collapsed upon the roof of the Kramer Building, crashed through said roof and the two intervening floors, fell upon plaintiff's intestate and killed him, who, at the time, was on the first floor of the leased premises. *458
Shortly after the fire, and again fifteen or twenty days later, the chief of police and assistant building inspector of Elizabeth City, in the discharge of his duties, examined the parapet wall in question and reported to Mr. Williams that "the wall was all right and safe and there was not any danger in it." In the meantime, however, the defendants had filed claim with the insurance company for $700, contending that the parapet wall would have to come down. This claim was finally adjusted for $200.
From judgment of nonsuit entered at the close of all the evidence, plaintiff appeals, assigning errors.
In view of the trial theory of the case, which is controlling on appeal (In re Parker,
The plaintiff relies upon the unusuality of the situation and concedes that the general rule of liability as between landlord and tenant is not so favorable to a recovery. Hudson v. Silk Co.,
At the common law, which obtains in this jurisdiction, a lessor is under no implied covenant to repair, or to keep in repair, the demised premises.Improvement Co. v. Coley-Bardin, supra. And even with an express agreement to repair, liability for personal injuries to the tenant, his family, servants, or guests, sustained by reason of its breach, is ordinarily held to be beyond the terms of such agreement and not within the contemplation of the parties. Jordan v. Miller,
The facts alleged and shown are not sufficient to take the case out of the general rule, hence on the record as presented, we are of opinion the judgment of nonsuit was properly entered.
Affirmed.
