47 So. 147 | Ala. | 1908
“At common law it was the well-settled rule that, in the absence of any agreement between the parties, the landlord Avas under no obligation to his tenant to keep the demised premises in repair. The rule of caveat emptor applies in regard to leases, and the landlord is not even under an implied obligation to remedy defects in the demised premises existing at the time of the demise. It folioAvs, therefore, that, in the absence of any agreement on the part of the landlord to repair, a tenant cannot recover from the landlord the cost of repairs made by him; nor can the tenant recoArer from the landlord for injuries to his property or person, or to the property or person of his family, caused by the defective condition of the demised premises.” 18 Am. & Eng. Ency. of Law, 215; Burks v. Bragg, 89 Ala. 204, 7 South. 156; Taylor on Landlord and Tenant, § 175. As a general rule, the landlord’is not liable for injuries to third persons during the tenancy for defects in the premises; and where the landlord has created no nuisance, and is guilty of no willful wrong, or fraud, or culpable negligence, he incurs no liability for any injury suffered by any person occupying or going upon the premises during the term of the
The rule, however, of the liability of the landlord for renting premises in such a dangerous condition as to constitute a nuisance, does not exist in favor of the tenant, his servants, guests, or others entering under his title. — Thomp. on Neg. vol. 1, § 1133; 24 Cyc. 1114; Marshall v. Heard, 59 Tex. 266; Hinds v. Wilcox, 96 Tenn. 148, 33 S. W. W. 914, 34 L. R. A. 824, 54 Am. St. Rep. 823; Wilson v. Treadwell, 81 Cal. 58, 22 Pac. 304; McKenzie v. Cheetham, 83 Me. 543, 22 Atl. 469; O’Brien v. Capwell, 59 Barb. (N. Y.) 497. As to them, in the absence of covenant to repair, he is only liable for injuries resulting from latent defects, known to him a.t the time of the leasing, and which he conceals from the tenant.— 24 Cyc. 1114, and cases cited in note 50; Thomp. on Neg- §§ 1130, 1131. If the defect is obvious at the time of the letting, the tenant takes the possession of premises as he found them, and the landlord would not be liable for injuries resulting from said obvious defects to the tenant, his family, servants or guests. — Sunasach v. Mo
The gravamen of the fourth count of the complaint appears to be negligent failure to repair the steps, which the “defendant before the injuries hereinafter mentioned were received,” contracted with the tenant to make. The complaint does not aver a covenant to repair or keep the premises in repair when the lease was made. It is, therefore, needless for us to decide whether the landlord would be liable to a third, person for injuries sustained by a defect he covenanted to repair, and did not repair, since there is no averment that the agreement was a part of the contract; non constat it was after-wards without consideration and nudum pactum. “If
Count 5 attempts to charge a cause of action growing out of the negligence of the landlord in an attempt to repair the premises or remedy existing defects, but does not aver when the repairs were attempted; non constat it may have been before the letting. The landlord is only liable for negligence in making repairs during the terms of the lease. — Thomp. on Neg. § 1156, subd. 4. But this proposition, while argued by’counsel for appellee, is-not presented by any of the demurrers, and which should not have been sustained. Section 3303 of the Code of 1896. The demurrers filed to the fourth count were also interposed to the fifth count; but said last count was not subject to any of the "infirmities pointed out in said demurrers, as they were either inapt or general. The trial court erred in sustaining the demurrers to the fifth count.
Reversed and remanded.