100 Tenn. 538 | Tenn. | 1898
This is an action by a tenant against a landlord for injuries received from the defective condition of leased premises. The case has been before the Court heretofore, and opinions were rendered, reported in 12 Pickle, 148, 328, which states quite fully the facts and contentions as then made. At the last trial of the cause in the Court below there was a verdict for plaintiff for $2,300, and, on motion for new trial, upon suggestion by the presiding. Judge, $500 of this amount was remitted, and for the balance, $1,800, judgment was rendered," and defendant has appealed and assigned errors.
It is insisted that the Court erred in following the rule laid down in Hines v. Willcox and Stenberg
In regard to the latter case, it is only necessary to say that in it, it is expressly stated that what was therein said was not intended to conflict with the cáse of Hines v. Willcox, and that case was distinguished from the Hines and Willcox case. In the case in 13 Pickle the Court held that the trial Judge erred in holding the landlord liable, though he may have been ignorant of any defects and conditions, without fault or negligence on his part, thus making the landlord an insurer of the condition of
Prior to the case of Hines v. Willcox, there are in Tennessee only three cases in which the question of the liability of the landlord to 'the tenant, under conditions somewhat similar to the present, are considered.
The first is the case of Banks v. White, 1 Sneed, 613. In that case the leased premises became un-tenantable daring the pendency of the lease, caused by the acts of the city authorities in opening new streets, and not by any act of the landlord or any defect in the premises themselves when they were leased, and the Court held that the law does not imply any warranty as to the continuing condition of the property demised — a rule laid down in all the cases and questioned in none, but one wholly different from the principle involved in the present case, which relates to the condition of the premises when leased, and not to any subsequent changes, contingencies, or conditions during the lease.
Another case is that of Southern Oil Works v. Bickford, 14 Lea, 659. That was a case of a suit by a landlord against a tenant for improperly using
In Young v. Bransford, 12 Lea, 244, in treating of liability to the public for the condition of the premises, it is stated that it is the duty of the tenant or occupier to keep the premises in repair so far as to make them safe to the public. This, it will be seen, also relates to the continuing condition of the premises pending the lease. The same case adds: “The landlord is liable when he covenants to keep the premises in repair, or when the defect exists at the time of the lease.” Citing 1 Thomp. Neg., 317; Wharton Neg., 817. 'This is the only case in our State, up to that time, prescribing the rule of liability between the landlord and tenant at the time the lease is made, and it holds the landlord liable for defects and dangerous conditions existing at that time.
We are also cited to the case of Doyle v. U. P. R. R. Co., as being a case elaborated with great research and ability. 147 U. S., 413. In that case a railroad had let to a party a house which, during the continuance of the iease, was overwhelmed with a snow slide. There was no defect in the premises when let; the snow slide was the act of God occurring afterward, and the landlord was in no way
The case of Viterbo v. Finlander, 120 U. S., 712, is 'also referred to, but that was a Louisiana case, in which the rules of the civil law were applied, and the doctrine of the common law only incidentally mentioned, and not at all involved in the decision of the case, and not commented on or explained.
In the case of Bowe v. Hunking, 135 Mass., 380 (46 Am. Rep., 471), it was laid down as a rule that if there was a duty devolving on the landlord to inform the tenant of a defect in the premises, there would be no distinction, as a ground of liability, between an intentional and an unintentional neglect to perform it, and there could be no such duty without knowledge of the defect. But this is evidently opposed to the great weight of authority, which discriminates between the intentional and unintentional neglect to perform a duty, the former being a fraud or tort and the latter not. In this case it appears that a step in a stairway had been sawed out, and the landlord knew it and tested it, and deemed it safe, but the tenant, it seems, did not know it, though he had some opportunity to ascertain it, and it was held that he could not recover because of an injury from it. This is an extreme case, which does not commend itself by its facts or reasoning to general approval. The defect was one which no tenant would expect
The case of Edwards v. N. Y. & Harlem, R. R. Co., 98 N. Y., 45 (50 Am. Rep., 659), is also referred to with approval, and from it is cited an extract, as follows: “It is a universal rule, to which no exception can be found in any case now regarded as authority, that, upon the demise of real estate, there is no implied warranty that the property is fit for occupation or suitable for the use or purpose for which it is hired.” This evidently has reference alone to the liabilities arising out of the contractual relation between the landlord and tenant. The same case, on page 661, recognizes a distinct ground of liability resting upon the delictum of the landlord, and not on contract. It says: “If he [the landlord] demises premises knowing that they are dangerous and unfit for the use for which they are hired, and fails to disclose their condition, he is guilty of negligence which will, in many cases, impose responsibility upon him.” And again, same page: “The responsibility of the landlord is the same in all cases. If guilty of negligence or other delic-tum which leads directly to the accident and wrong complained of, he is .liable; if not so guilty, no liability attaches to him. " If he lets' a building for a warehouse, knowing that it is so weak and imper
The case of Jaffe v. Harteau, 15 Am. Rep., 438, is also cited, and in that case it is held, without any mature consideration, that, in the absence of fraud or warranty, the landlord is not liable for the present or future condition of leased premises, but the case evidently considers only the liabilities arising out of the contractual relation of the parties, and does not refer to such liabilities as arise out of the delictum of the landlord. And the same may be 'said of Keates v. Cadogan, 10 C. B., 591, and Robbins v. Jones, 15 C. B., N. S., 240, referred to, which simply state the rights arising out of the contractual relation, and do not consider the matter from the standpoint of delictum on the part of the landr lord. But in the case of Jaffe v. Harteau, the Court is evidently influenced, if not controlled, by the fact that the defendant did not know, or have any reason to suspect, that the premises were dangerous, thus impliedly .recognizing the doctrine of some care upon the part of the landlord, and relieving him because he did not know or have reason to suspect.
It may be conceded that no ground of liability arises out of the contract between the landlord and tenant in the absence of fraud or warranty, but a
There is also a distinction drawn in the cases -between patent and hidden defects. In the former, when the 'landlord and tenant exercise the same care, and hare equal opportunities for examination, there is no ground of liability on the part of the landlord to the tenant, inasmuch as the negligence of the landlord is neutralized in its effect by the negligence of the tenant, and the ordinary rule of contributory negligence by. the injured party applies to defeat any recovery by the tenant. In regard tg hidden or secret defects or dangers, the cases are uniform that if they exist and are known to the landlord and not disclosed to the tenant, the landlord will be liable, because such conduct amounts to a fraud.
It is insisted, however, that in such cases of hidden defects there is no liability in the absence of actual knowledge on the part of the landlord, and fraud and deceit practiced by him. The case of Hines v. Willcox, heretofore reported, goes one step further than this, and holds the landlord liable,
In the case of Hines v. Willcox, 12 Pickle, 328-348, the rule is laid down that he is liable for what he knows, or by the exercise of reasonable care and diligence ought to know, about his property, provided the tenant at the same time exercises reasonable care and diligence, and the authorities were cited. It was not attempted in the 12 Pickle case to lay down the degree of diligence that' the land
Several cases were cited supporting the holding as thus made, and others might have been collated from the mass of authorities upon the subject. The case of Hines v. Willcox has been re-reported in 34 Lawyers’ Reports, 824, and extensively annotated by Mr. Henry P. Earnham. The learned annotator states that the case is a new departure in the law of landlord and tenant, and he has industriously collated authorities to sustain his assertion, and has commented upon some of the authorities cited, leaving, however, the great bulk of the cases cited in Hines v. Willcox without comment. The annotation is valuable as a brief upon the liability of the landlord to the tenant arising out of the contractual relation, but it is to be regretted that the learned annotator did not also collate the authorities bearing upon the true question presented in’ the Hines v. Willcox case
Quite a complete and discriminating review of the authorities up to date of 1886 is found in the case of City of Lowell v. Spaulding, 50 Am. Dec., 776 to 783. Bee, especially, this feature treated at page 780, with citations.
The ground of liability upon the part of a landlord when he demises dangerous property, has nothing special to do with the relation of landlord and tenant. It is the ordinary case of liability for- personal misfeasance, which runs through all the relations of individuals to each other. As is substantially said by Ruger, Chief Justice, in Edwards v. Railroad, 50 Am. Rep., 673 (dissenting opinion): ‘ ‘ The liability does not rest upon the theory of an express contract between the owner and person injured, but on the obligation which the law imposes on ' all to so keep and use their, property that others using it and entering upon it by their invitation, shall not be injured by its improper condition or unfitness, and its inadequacy for the purposes to which it has been devoted.” And as is stated in Cowan v. Sunderland, quoted in Hines v. Willcox, there is an exception to the general rule of emeat emjjtor as between lessor and lessee, ‘‘arising from the duty which the lessor owes to the lessee. This
£ 1 In cases where lessors have been held liable for injuries to lessees, the liability is founded on negligence. . . . The action of tort has .for its foundation the negligence of the defendant, and this means more than a breach of promise. There must be some breach of duty distinct from breach of contract,” etc. Tuttle v. Gilbert Mfg. Co., 145 Mass., 174, 175.
In Kern v. Myll, 80 Mich., 530, it is said in a suit between tenant anql landlord: ££The cause of action does not rest upon any .covenant, express or implied, of the landlord to repair the premises, nor that they were habitable at the time the lease was made, nor does it rest necessarily upon the relation of landlord and tenant. . . . But the cause of action is based upon the maxim that every person must so use his own premises as not to injure others either in person or property.” The declaration showed a nuisance when the premises were leased, known to defendant and concealed from plaintiff, calculated to injure his health.
We add others, but by no means all that may be cited: Albert v. State, 59 Am. Rep., 159; Timlin v. The Standard Oil Co., 22 Am. State Rep., 849-851; Wood on Landlord & Tenant, p. 855; Cowen v. Sunderland, 145 Mass., 363; Minor v. Sharon, 112 Mass., 477; Butler v. Cushing, 48 Hum., 617; Cutler v. Hamlen, 147 Mass., 471; Booth v. Merriam, 155 Mass., 521; Oxford v. Leathe, 165 Mass., 255; Wilcox v. Zane, 167 Mass., 306; Lynch v. Swan, 167 Mass., 570; Matthews v. Degraff, 13 Hum., 356; O'Dwyer v. O'Brien, 13 Hum., 570; Metzger v. Schultz, 59 Am. State Rep., 323.
In Albert v. State, 59 Am. Rep., 159-161, a wharf was rented, and it was said “if defendant knew, or by exercise of reasonable diligence could have known, of its unsafe condition, and the accident happened in consequence of such condition, the plaintiff was entitled to recover.”
The true doctrine is well stated in Timlin v. The
In Winder v. McLean, 19 Am. St. Rep., 702, the matter is presented in a shape that shows the sound reason and good sense of the rule that the landlord is liable if the premises are dangerous when he leases, and the tenant if they become dangerous when he has them leased. It is laid down that the landlord is ■ liable if the premises are a nuisance when leased, and he cannot escape liability by leasing the property to a tenant and putting him in possession. To the same effect are Knauss v. Brua, 107 Pa. St.,
In Cutler v. Hamlen, 147 Mass., 475, the Court held that when the landlord knew the drains were defective, and also that diphtheria had been in the house, the jury would have been warranted in finding that the landlord knew, or ought to have known, as a prudent man, that this was dangerous.
In Lindsey v. Leighton, 150 Mass., 288, the Court was asked to charge that it must be known that the defendant had knowledge of the defect, or they could not hold him. The trial Judge refused, and, on appeal, the Supreme Court said this refusal was correct, that it was not necessary to show that defendant had actual knowledge of the defect. His duty was that of due care, and ignorance of the defect was no defense. Citing Gill v. Middleton, 105 Mass., 477; Redman v. Conway, 126 Mass., 374; Looney v. McLean, 129 Mass., 33; Watkins v. Goodall, 138 Mass., 533. This was a case of defect in steps leading to a tenement occupied by plaintiff. There was evidence that defendant’s attention had been called to the defect, and he had frequently passed over the steps.
In Martin v. Richards, 155 Mass., 386, the Court
In Moynihan v. Allyn, 162 Mass., 272, it was held that the minor could not recover because the defect was in existence when the premises were let. The defect was in a platform common to several tenants, but the controlling feature was, that’ its condition could have been ascertained by reasonable examination of the tenant. The Court held that defendant’s duty was to keep the platform in as good condition as when leased, and to inform the tenant of any hidden defects which could not be discovered by reasonable diligence.
In Booth v. Merriam, 155 Mass., 522, it is said: “If there is a concealed defect that renders the premises dangerous, which the tenant cannot discover by the exercise of reasonable diligence, of which the landlord has or ought to have knowledge, it is the landlord’s duty to disclose it, and he is liable for any injury which results from his concealment of it. It
In Oxford v. Leathe, 165 Mass., 255, the landlord was held liable for the condition of a platform used to go into a place of. public amusement, on the ground that he must have contemplated the public would go on it and the liability is stated to be just the same as if the premises are let with a nuisance upon them. Citing many familiar cases.
In Wilcox v. Zane, 167 Mass., 306, nurse of tenant was injured by defective condition of roof used by all the tenants in the building to hang out clothes and other purposes. There was no evidence that plaintiff did not exercise due care. There was evidence that the plank which broke was badly decayed, cross-grained, and knotty, and no repairs had been made on the roof' for .years. The plaintiff testified that he had never noticed the defect. It was held that she had no such duty to observe the condition of the roof as to safety as the landlord had.
In Lynch v. Swan, 167 Mass., 510, there was an injury upon a common stairway used by several tenants. The Court says there was some evidence that the step was not strong enough, and the question was whether or not the landlord knew this or ought to have known it. It was not so apparent that plaintiff could be held to take the risk. The Court say the question is this, Was there evidence for the
In Matthews v. DeGraff, 13 Hun, 356, it was held to be the duty of a landlord to keep in repair a coal hole or chute in the sidewalk in front of premises which he leased, and that he must from time to time examine and see its condition, even though the same tenant held over from term to term, and it is put on the ground that it is the dutj' of the landlord to examine and ascertain the condition of the property when he leases it, and the holding over from term to term was in effect a new lease each term. This proceeds upon the idea that the landlord owes a duty to the public to have his premises safe when he leases them, even though the obligation is on the tenant to make repairs during the lease.
In O'Dwyer v. O’Brien, 13 Hun, 570, it was held that the landlord would be liable for the defective repairing of a plank walk on the premises used by plaintiff but for the fact that the tenant could and did see the defect and danger, and was thus guilty of such contributory negligence as would defeat her recovery.
In Bashe v. Boyce, 73 Md., 469, it was held that the owner of a wharf was not liable for injuries sustained by an employe of a lessee from a rotten
It was not held in Hines v. Willcox, that a landlord is liable for a defect which occurs or a danger that arises after the lease has been made and while the tenant is in possession. For these defects and dangers the tenant not only has no recourse against the landlord, but he is, on the contrary, liable himself to third persons who may be injured. But the landlord is liable for such defects and dangers as are in existence when the lease is made, provided he knew of them or ought to know of them, and provided also that the tenant-' does not know of them and could not know of1 them, both parties in the matter exercising reasonable care and diligence. Several distinctions are attempted to be drawn, but so far as they affect the question of ■ the duty of the landlord to know the condition of his premises, there is no ground for any difference in its application. It is said that many of the cases in which the expression “ought to know” is used in regard to the landlord, are cases in which the landlord remains in possession of a portion of the premises while other portions of the same premises are in the possession of other ■ tenants. But the only difference between the two classes of cases appears to be this, that the liability of the landlord ordinarily ceases if he rents
It is said that some of the cases cited are cases of public property, such as docks, wharves, theaters, and other places of public resort, and it is attempted to. show that these« form exceptions to the general rule. Even if this were so, it could not avail in this case, as the property in this case was rented for boarding house purposes, and so known to the landlord or his agent. But we are unable to see any ground for the application of a different rule in such cases. In the one case we have an instance of a quasi. public nuisance, in the other a case of quasi private nuisance. But the obligation not to expose the individual to danger is the same as that not to-expose the public to danger.
So far as there is any obligation on the landlord to know the condition of his property, it does not matter whether the dangers and defects are patent or secret, unless, indeed, there is some more stringent duty in the latter case, inasmuch as it may be presumed that as to patent dangers they will most probably be seen by the tenant if he has the opportunity of examination. But to hold that the rule of .caveat envptor applies to all cases of rental when there is no warranty, is to ignore the large mass of cases, which hold the landlord liable (1) if he is guilty of fraud or deceit, (2) if he leases premises which are dangerous when leased. The result of this doctrine, if carried out, is that if a tenant has no opportunity to examine the premises he must nevertheless take them at his own risk. If, for instance, a landlord leases premises in a distant city which the tenant does not see, and has no opportunity to examine, under the rule of caveat emptor, if the tenant enters without an opportunity for examination, and is injured by the dangerous and defective condition of
It is argued with much earnestness and ability that in order to make the rule operative it must be held that the landlord is required to exercise a greater degree of diligence and care than the tenant. But this position is • not, we think, well taken. The degree of care and diligénce required of each is the same — that is, reasonable care and diligence, such as a reasonably prudent person would exercise if surrounded by the same or similar circumstances. From the very nature of the' case the same degree of care and diligence exercised by each would in many, if not all cases, enable the landlord to know more than the tenant. The former owns the property, has daily access to it and an opportunity to know its condition,' and his attention s or may be called to defects by previous tenants. The tenant sees the property but once perhaps, and that in a more or less hurried manner. Not being familiar with the premises, he cannot by such inspection know as much of - the property as the landlord, does. Again, each may see the same defect, and the danger arising out of such' defect may not be
It is said this rule of reasonable diligence on the
So, also, in case of railroad or other accidents and injuries, a party injured has the right to recover because of the negligence of the railroad or other party, but he may lose this right, because his own negligence has contributed to and is the direct cause of the inj ury, and the same rule applies in other relations.
It is evident, however, that this rule of counterbalancing negligence can only apply to cases where the tenant has the opportunity to see, examine, and ascertain not only the defects but also the dangers- equally with the landlord.
The trial Judge in his charge followed substantially the rules laid down in Hines v. Willcox, and Stenberg v. Willcox, reported in 12 Pickle, and upon a re-examination of these cases, after the ablest arguments and most severe , criticism, the majority of the Court does not see that the principles there laid down, when properly understood and applied,
In the case now on trial there are other features that are equally conclusive of the plaintiff’s right to recover. There is evidence in the record tending to show that the plaintiff actually knew the dangerous condition of the porch when the lease was made, also that he had his attention called to such dangerous condition after the lease was made, and promised and undertook to make it safe and sent a carpenter to. make the necessary repairs, and that after they were made the tenants were assured the premises were safe. It is true there is some conflict on both the points as. to what repairs were promised and what were made, but there is evidence from which the jury would be warranted in holding as they did, and in concluding that the undertaking and effort of the landlord was not merely to shut out the snow and rain by tacking a little tin over the opening, but to make the porch safe and secure, and the evidence is quite clear that any ordinary carpenter or workman, in attempting to make any repairs, could not but see the dangerous conditions existing. Upon this point see the cases of Werthheimer v. Saunders, 37 L. R. A., 147; Martin v. Richards, 155 Mass., 386, and cases there cited.
We are of opinion there was evidence to warrant the jury in believing that the premises in this case were in dangerous condition when they were let;
