Sparks v. Murray

| Ark. | Jul 12, 1915

Kirby, J.

Appellee urges that the appeal was not taken within six months from the time of the rendition of the judgment and should on that account be dismissed.

(1) The act approved February 17,1915, Act No. 62, shortening the time for taking appeals, does- not apply to this judgment rendered before its passage and said act did not become a law until ninety days after the adjournment of the Legislature which passed it, or in June after the appeal was taken in April. Rankin v. Schofield, 70 Ark. 83" date_filed="1902-01-04" court="Ark." case_name="Rankin v. Schofield">70 Ark. 83; Arkansas Tax Commission v. Moore, 103 Ark. 48" date_filed="1912-03-11" court="Ark." case_name="Arkansas Tax Commission v. Moore">103 Ark. 48, 145 S. W. 199.

The court erred in refusing appellant’s requested instruction numbered 1. While it is true there is no stipulation or covenant in the lease requiring the lessor to make repairs, and'he is not, under the terms of it, bound to do so, still there is substantial testimony tending to show that he agreed to repair the roof and undertook and attempted to do so, and that injury resulted to the tenant from his negligence in not making the repairs effective, and the requested instruction would properly have submitted to the jury the question of his liability for damages therefor.

(2) The law appears to be settled that notwithstanding the landlord is under no implied obligation to make repairs or improvements upon leased premises, in the absence of a covenant or agreement to do so, still if he undertakes to make such improvement or repairs and makes them in such a negligent and careless manner, as to injure the tenant, the tenant may recover damages therefor.

“Where the landlord undertakes to make repairs upon the demised premises, he is liable for injuries resulting from the negligence of himself or his servants in making such repairs, and this is true even where the landlord is under no obligation to make such repairs, but undertakes to make them gratuitously. ’ ’ 24 'Cyc. 1116.

In Horton v. Early, 134 P. 436" date_filed="1913-08-06" court="Okla." case_name="Horton v. Early">134 Pac. 436, the Supreme Court of Oklahoma cites numerous cases in support of its opinion, declaring the law as follows: made subsequent to the execution of the lease, is without consideration, and ¡henee is unenforceable, yet if he shall voluntarily and gratuitously undertake, during the term, to repair the demised premises, he is bound in so doing to use ordinary care and diligence. He may be held responsible for 'his negligence or lack of care and skill, or the negligence of his servant, or those employed by him in doing what, in the first instance, he was not bound to do. The distinction is made by the authorities between nonfeasance and misfeasance of the landlord. In other words, the law distinguishes between the failure or refusal of the landlord to. do what he has not promised to do, or is not legally bound to do, and his doing it in a negligent manner. But if the landlord voluntarily repairs and actually enters upon the 'carrying out of his scheme of repair, he will be responsible for the want of due care in the execution of. the work, upon the principle of liability for negligence, without reference to any question of implied contract to repair, or implied consideration.” See, also, Michael Bros. v. Billings Printing Co., 150 S. W. (Ky.) 77.

“Notwithstanding that plaintiff was not legally bound to repair the roof, yet, having undertaken so to do, he is liable for the damage sustained on account of a failure to make said repairs in, a proper and skillful manner. The principle that governs in such cases being that, although the landlord is not bound to repair in the absence of an express covenant to repair, where no controlling statute interferes, and though his promise to repair,

For the error in instructing the verdict and refusing appellant’s requested instruction numbered one, the judgment is reversed and the cause remanded for a new trial.