Morgan v. Sheppard , 156 Ala. 403 ( 1908 )

ANDERSON, J.

“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 demise, at the invitation or license of the tenant, such as members of the family, employes, guests, or customers of the tenant. When, however, the premises are out of repair at the time of letting, in particulars which the landlord is bound as regards third persons not to allow, the landlord is liable for injuries sustained by a third person from such want of repair. The reason for the rule seems to be that in such a case the dangerous condition of the premises constitutes a nuisance, and the liability of the landlord results from his leasing-premises upon which a nuisance exists. — 18 Am. & Eng. Ency. Law, 238, 239; Dalay v. Savage, 145 Mass. 38, 12 N. E. 841, 1 Am. St. Rep. 429; Timlin v. Standard Oil Co., 126 N. Y. 514, 27 N. E. 786, 22 Am. St. Rep. 845; Benson v. Suarez, 43 Barb. (N. Y.) 408; McAdam on Landlord and Tenant, vol. 2, p. 1208, § 374.

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. Morey, 196 Ill. 570, 63 N. E. 1039; 18 Am. & Eng. Ency. of Law (2d Ed.) p. 224; 2 Wood on Landlord & Tenant. § 381; Anderson v. Hayes, 101 Wis. 538, 77 N. W. 891, 70 Am. St. Rep. 930; Coke v. Gutkese, 80 Ky. 598, 44 Am. Rep. 499; Kern v. Myll, 80 Mich. 525, 45 N. W. 587, 8 L. R. A. 682. In order, therefore, for the complaint to show a breach of duty on the part of the landlord to a tenant, or his servants or guests, the defects causing the injury must have been latent or concealed, and -not disclosed by the landlord to the tenant. The third count of the complaint in the case at bar does not aver that the defect was latent and not obvious to the tenant or that the tenant did not know of same. It might be that, if the defect was latent, though known to the tenant, the landlord would not be liable, and that knowledge of said defect, under our system of pleading, would be defensive matter, and the complaint would not have to negative same. But, conceding that such is the case, the complaint shows no breach -of duty when it fails to aver that the defect was latent, and not obvious, notwithstanding it was known to the defendant at'the time of the letting. The trial court did not err in sustaining the demurrer to the third count.

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 •during the term, or after the execution of the lease, which is silent as to the landlord’s duty to repair, the landlord, without consideration, promises to make repairs, such promise imposes no obligation or liability.” —18 Am. & Eng. Ency. Law 227; Purcell v. English, 86 Ind. 34, 44 Am. Rep. 255; Eblin v. Miller, 78 Ky. 371; Gregor v. Cady, 82 Me. 131, 19 Atl. 108, 17 Am. St. Rep. 466; Gill v. Middleton, 105 Mass. 477, 7 Am. Rep. 548; Town v. Armstrong, 75 Mich. 580, 42 N. W. 983; Clyne v. Helmes, 61 N. J. Law, 358, 39 Atl. 767. It is true the fourth count was amended by averring that the defendant undertook to make the repairs for a valuable consideration; but the amendment also struck out “with Mi’s. Bassinger.” An agreement with some disinterested third person to repair would not suffice. The trial court did not err in sustaining the demurrer to count 4, either before or after amendment.

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.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

Tyson,- C. J., and Dowdell and McClellan, JJ., concur.