Opinion
No. 34762.
February 23, 1942.
LANDLORD AND TENANT.
Where property occupied by injured tenant was a double house, part of which was leased to another tenant, but there was a common approach and a single set of front steps available for use by all tenants and by landlord, landlord retained control over steps and was responsible for reasonable upkeep thereof and was liable for failure to use reasonable care to keep them reasonably safe, and hence where jury found that landlord and her agent were negligent in that respect, they were liable to tenant for injuries sustained on steps.
APPEAL from the circuit court of Adams county, HON. R.E. BENNETT, Judge.
Brandon Brandon, of Natchez, for appellee, on suggestion of error.
The court has erred in its opinion herein in holding that the principle laid down in Rich v. Swalm, 161 Miss. 505, 137 Co. 325, and McDonald v. Wilmut Gas Oil Co., 180 Miss. 350, 176 So. 395, are controlling in favor of the landlord's contention in this case.
The landlord, Mrs. Hiller, was the owner of a two-apartment tenement house, serviced by a common front porch and tier of steps or stairs leading thereto, which tenants occupying each side of the tenement house were required to use and permitted to use. Both sides of the tenement house were occupied by separate tenants under separate lease agreements with the landlord. The landlord in all respects and under all of the facts and in all of the instances acted through her agent, Ben Stockner, who was her father and is a party defendant and appellant. The appellee rented only one side of this two-tenant tenement house and the common porch and stairway was required to be used by her and was used by her in common with the other tenant in the house and likewise was used by invitees of either tenant, by the landlord and her agent and by such members of the public as might have business with the tenants or either of them. It was understood that the landlord would keep the porch and steps in repair, as witness the fact that when first complaint was made as to the same being out of repair, the landlord, through her agent, undertook to repair the same but was guilty of negligence, if not of gross negligence, in using rotten and unsuitable materials in making repairs.
The agreement and recognized obligation to make the repairs is evidenced further by the fact that when the steps again became out of repair, the landlord, through her agent, agreed to make the repairs, but failed so to do.
The agreement to make repairs was supported by the valuable consideration of the tenant remaining in the property and continuing to pay rent; but regardless of express agreement, the law implied the agreement in this case, being one of the renting of an apartment building or tenement house to two separate tenants who should have the use of common approaches. The theory of appellant's liability in this type of case is supported by the authorities.
Secs. 355, 357, 360, 361, 362 of American Law Institute, 2 Torts; Sawyer v. McGillicuddy, 81 Me. 318, 3 L.R.A. 458, 10 Am. St. Rep. 260, 17 A. 124; 25 A.L.R. 1273 et seq.; 39 A.L.R. 294 et seq.; 54 A.L.R. 1411 et seq.; 75 A.L.R. 154 et seq.; 97 A.L.R., 220 et seq.; Hilton v. Hodges, 173 Miss. 343, 161 So. 686; Hart v. Coleman, 201 Ala. 343, 78 So. 201, L.R.A. 1918E, 213.
Engle Laub, of Natchez, for appellant, in reply to suggestion of error.
The court has indicated that it desires to have discussed the contention of appellee that the rule as laid down in Rich v. Swalm, 161 Miss. 505, 137 So. 325, and McDonald v. Wilmut Gas Oil Company, 180 Miss. 350, 176 So. 395, does not apply for the reason that the steps in question constitute a common way to both tenants of the premises, and the control thereof, and the responsibility therefor, remained upon the landlord.
In the absence of an agreement to the contrary, the landlord is not obligated to make repairs upon the demised premises during the term either to put the premises in repair or to keep them in such condition. The landlord is not bound to repair defects in the demised premises existing at the time he leased the same or occurring thereafter from any cause other than the act of the landlord. This rule applies even where they become defective through decay or use. It is well settled that he is under no obligation to rebuild or restore premises destroyed without his fault if he has not covenanted to do so. A landlord is not, in the absence of express covenant or agreement, bound to make repairs on the leased property or maintain it in a safe and suitable condition for the use and occupancy of the tenant.
32 Am. Jur. 521, Par., 657; Jones v. Millsaps, 71 Miss. 10, 14 So. 440, 23 L.R.A. 155.
Our court in Jones v. Millsaps discussed a doctrine laid down by the Massachusetts court in two of its case, and it is largely the Massachusetts doctrine, as discussed in several of the other states following that doctrine, which has been cited by counsel for appellee. Our court in Jones v. Millsaps points out that the State of Maine (Toole v. Beckett, 67 Me. 544) is one of those states which follows the Massachusetts doctrine. On the other hand, our court rejects that doctrine.
The contract existing between appellant and appellee in this case was not in writing. The common law doctrine applied. There was nothing in the contract to the contrary. This was an ordinary letting. The duty to repair was upon the tenant and not upon the landlord. The tenant took the property as he found it, taking it for better or for worse. All of these doctrines are set forth and upheld as being the jurisprudence of this state in Jones v. Millsaps, supra.
Jones v. Millsaps has never been repudiated in this state; it has been followed not only by later cases in this state, but by decisions in other states.
Charlie's Transfer Co. v. Malone (Ala.), 48 So. 705; Krueger v. Ferrant, 29 Minn. 385, 13 N.W. 158; Ward v. Fagin, 101 Mo. 669, 14 S.W. 738, 20 Am. St. Rep. 650-4; Piazza v. Richardson (Miss.), 114 So. 831; Rich v. Swalm, 161 Miss. 505, 137 So. 325.
The landlord is not liable for injuries from a defect in premises where the premises are used in common by tenants as tenants in common — in other words, where the possession is in them in common, and not in the landlord. Thus, where parts of premises are leased to different tenants and other parts are used by the tenants in common, the landlord is not responsible for the safe condition of the parts used in common if the landlord does not have possession and control of such parts used in common, but the tenants have possession and control in common. Moreover, mere use in common by subtenants does not impose liability upon the landlord.
32 Am. Jr. 529, Par. 664.
The former opinion followed the emphasis placed upon the issue whether, in the absence of a special agreement, a landlord is liable for injuries suffered by a tenant due to defects in the demised premises. In line with the principles announced in Rich v. Swalm, 161 Miss. 505, 137 So. 325, and McDonald v. Wilmut Gas Oil Co., 180 Miss. 350, 176 So. 395, we held that there was no liability on the part of the landlord.
The suggestion of error calls attention to, and now adequately stresses, a factual situation formerly obscured by the discussion of the legal principles. Our attention is now specially directed to the testimony which discloses that the property occupied by the appellee as a tenant was a double house; that is, part thereof was leased to another tenant; but there was a common approach, and a single set of front steps available for use by all tenants and by the landlord. Under these circumstances it is clear that the landlord, not only for convenience but of necessity, retained control over, and hence responsibility for the reasonable upkeep of, the steps, and is liable for a failure to use reasonable care to keep them reasonably safe. Roman v. King, 289 Mo. 641, 233 S.W. 161, 25 A.L.R. 1263; Gibson v. Hoppman, 108 Conn. 401, 143 A. 635, 75 A.L.R. 148; Burelle v. Pienkofski, 84 N.H. 200, 148 A. 24; Rice v. Ziegler, 128 Ohio St. 239, 190 N.E. 560; Sawyer v. McGillicuddy, 81 Me. 318, 17 A. 124, 3 L.R.A. 458, 10 Am. St. Rep. 260; La Plante v. La Zear, 31 Ind. App. 433, 68 N.E. 312; Rankin v. Ittner Realty Co., 242 N.Y. 339, 151 N.E. 641; Brewer v. Silverstein (Mo. Sup.), 64 S.W.2d 289; A.L.I., Torts, Sec. 360; 32 Am. Jur., Landlord and Tenant, Sec. 688. The jury found that the appellants were guilty of negligence in this respect.
In the response of appellants to the suggestion of error dependence is placed upon Jones v. Millsaps, 71 Miss. 10, 14 So. 440, 441, 23 L.R.A. 155. This case does not involve the duty of the landlord to keep in repair a common way, but merely the principles announced in Rich v. Swalm, supra. However, the Court impliedly recognized the principle of the master's duty over a common stair or way by the following language: "The case of Looney v. McLean, 129 Mass. 33 [37 Am. Rep. 295], held that a landlord who lets rooms in a tenement house to different tenants, with a right of way in common over a staircase is bound to keep such staircase in repair; but that is not the case at bar."
It is our conclusion that the former opinion, having been based upon assumptions which have been found to be not in accord with the now fully developed facts, should be withdrawn, and it is so ordered. Although some of the instructions on both sides misconceived the controlling issue, we find no reversible error herein. It results, therefore, that the judgment of the trial court based upon a verdict of the jury in appellee's favor must be affirmed.
Suggestion of error sustained and judgment affirmed.