Opinion
No. 29486.
October 26, 1931.
1. LANDLORD AND TENANT.
Simple lease of dwelling or other private premises carries no obligation on landlord to repair, if there be no deceit or misrepresentation or equivalent thereof by landlord.
2. LANDLORD AND TENANT.
Lessee takes premises as he finds them, and must return them as nearly as possible in like condition.
3. LANDLORD AND TENANT.
Where landlord agrees to repair premises, his obligation is purely contractual, and his liability for nonperformance is one for breach of contract.
4. LANDLORD AND TENANT.
On landlord's breach of agreement to repair premises, tenant is entitled to damages naturally arising according to usual course of things or those which must have been contemplated as probable result of breach.
5. LANDLORD AND TENANT.
Personal injuries to tenant resulting from porch banisters giving way held too remote to be included in action for breach of landlord's covenant to generally repair.
6. LANDLORD AND TENANT.
To recover for personal injuries, tenant must show some act of negligence or misfeasance beyond mere breach of landlord's covenant to repair.
APPEAL from circuit court of Lincoln county; HON.E.J. SIMMONS, Judge.
J.N. Yawn and P.Z. R.L. Jones, all of Brookhaven, for appellant.
In actions for personal injuries based on a landlord's breach of covenant to repair, it has sometimes been said that damages for such injuries were not within the contemplation of the parties at the time of the making of the agreement or were too remote for recovery. However, in a jurisdiction accepting this doctrine, and holding that plaintiff can only recover such damages as may be reasonably and fairly considered as arising from the breach of the covenant or such as may reasonably be supposed to have been in the contemplation of the parties at the time they made the contract, it has been held that the boundaries of such damages as might be contemplated may be enlarged by the fact of notice, and that after notice the landlord may be liable for injuries arising. Where the circumstances were out of the ordinary as, where the landlord having notice of a defective condition agreed to make repairs as an inducement to the tenant remaining after threat on his part to vacate, it has been held that the injuries resulting from such defect were in the contemplation of the parties at the time of the agreement and that the landlord was liable therefor. Although in general the lessor's covenant to repair will not support an action for a personal injury due to failure to make repairs, the rule will not apply where the very purpose of the promise was to safeguard against injury, and where in consequence an injury resulting from a failure to perform was in contemplation of the parties at the time the stipulation was given. So also, it has been held that, where particular repairs were agreed to by the landlord for the purpose of safeguarding the premises against the danger called to his attention, injuries resulting from his neglect to repair were in the contemplation of the parties.
36 C.J., p. 208.
The doctrine of assumption of risk is only applicable to cases between master and servant.
20 R.C.L., p. 109, sec. 95.
The general rule is firmly established that no implied covenant for repairs can be raised against the lessor. The lessee cannot invoke an implied covenant of the landlord that the leased premises are fit and suitable for the lessee's business or use. The intending tenant must use his own faculties and judge for himself if the premises he desire to lease are in repair and are suitable for his use. If he wishes to protect himself against the hazards of subsequently accruing accidents or defects requiring repairs, he must do so by proper covenants in his contract of lease. He takes his leased premises for better or worse, as an ancient authority aptly characterizes his taking. A tenant has it in his power to impress responsibility upon the landlord for the making of repairs and if the landlord fails to make the repairs in pursuance to such an agreement, he will be liable to the tenant for the damages thereby caused.
Jones v. Millsaps, 14 So. 440, 441.
A promise by a landlord to repair to prevent vacation of the premises by the tenant is supported by a sufficient consideration and the landlord is liable for personal injuries received by reason of his failure to make the repairs.
Hart v. Coleman, 78 So. 201, L.R.A. 1918, 213.
Where the lessor by his lease contracts to keep the leased premises in repair and he negligently fails to do so, he is liable to the lessee and the members of the lessee's family occupying the same, for personal injuries received from a defective condition of the premises. The action is for the wrong committed by the landlord by his negligence in failing to perform an act assumed by him, which he should know would protect them from injury if performed, or expose them to injury if not performed. The contract creates an implied legal duty on the part of the landlord toward those who are rightfully upon the premises and a negligent violation thereof vests in them a right of action in tort against him for injuries sustained.
Keegan v. Heileman Brewing Co., 152 Minn., 877, L.R.A. 1916 F. 1149.
It does not follow that where there is a breach of contract there can never be a liability in tort, as expression in some of the earlier cases would seem to imply.
Where there is a general duty, even though it arises from the relation created by, or from the term of, the contract, and that duty is violated, either by negligent performance or negligent nonperformance, a landlord may be held as for a tort. Between landlord and tenant, as in other relations, there is always the general duty to so use one's own as not to injure another.
Fowler Cycle Works v. Fraser Chalmers, 110 Ill. App. 126; Mesher v. Osborne, 134 P. 1092, 48 L.R.A. (N.S.) 917.
Circumstances indicating that personal injuries were within the contemplation of the parties making the contract, will create liability upon his part of the landlord for personal injuries resulting from his failure to repair as agreed.
Cromwell v. Allen, 151 Ill. App. 404.
A promise to repair a defect in the leased premises of a character so dangerous that it constituted a constant menace to the personal safety of the tenant, creates a duty on the part of the landlord the negligent breach of which constitutes a tort rendering him liable for personal injury to the tenant.
Graff v. W.J. Lemp Brewing Co., 145 Mo. App. 264, 129 S.W. 1005; Stillwell v. South Louisville Land Co., 58 S.W. 696.
Where a landlord after notice of a defect breached his contract to repair, he was liable for an injury to an employee of the tenant, injured through the defective condition of the premises.
Merchants C.P. S. Co. v. Miller, 186 S.W. 87, L.R.A. 1916F, 1137.
The English rule on this question makes the test of the lessor's liability privity of contract.
Cavalier v. Pope, 5 Ann. Cas. 713.
The State of Georgia has a statute upon this question and permits a recovery.
51 S.E. 579; 36 S.E. 615.
The State of Louisiana permitted a recovery in a case very similar to the one at bar.
Bouthe v. New Orleans Terminal Co., 72 So. 513.
There are numerous cases where the tenant was not permitted to recover for personal injuries, but an examination of these cases will show that each and every one of them was decided adversely to the tenant because of one of the following reasons. First: Either there was no express covenant to repair; or Second: There were no facts or circumstances surrounding the making of the contract, which would put the landlord upon notice or call his attention to the fact that the premises were in such condition that injuries to persons were likely to result, unless the premises were repaired — in other words, nothing to show that personal injuries were within the contemplation of the parties; or, Third: The tenant's right-of-action was barred by his contributory negligence.
Neither of these reasons can apply to the case at bar.
Brady, Dean Hobbs, of Brookhaven, for appellee.
Where the action is for a breach of contract to repair, it is held that damages arising from personal injuries received through some defect of the premises which a landlord agreed to, but did not, repair, are only such as approximately result from the breach and were within the contemplation of the parties when the contract was entered into.
Case note to Dustin v. Curtis, 75 N.H. 266, 67 A. 220, 13 Ann. Cas. 169; 11 L.R.A. (N.S.) 504.
It has been held with but few exceptions that the breach by the landlord of his contract to repair the demised premises will not ordinarily entitle the tenant, his family, servants, or guests, personally injured from a defect therein, existing because of the negligence of the landlord in failing to comply with his agreement to repair, to recover indemnity for such an injury, whether in contract or tort, since damages are too remote, and cannot be said to be fairly within the contemplation of the parties. A contract to repair does not contemplate as damages for the failure to perform it that any liability for personal injuries shall grow out of the defective condition of the premises; because the duty of the tenant, if the landlord fails to perform his contract to repair, is to do the work himself and recover the cost in an action for that purpose, or upon a counterclaim in an action for rent, or if the premises are made untenable by reason of the breach of contract the tenant may move out and defend in an action for rent as upon an eviction. In accordance with this view, in order to recover for personal injuries there must be shown some clear act of negligence or misfeasance on the part of the landlord beyond the mere breach of covenant.
16 R.C.L. 1059; 36 C.J. 208; Hamilton v. Feary, 8 Ind. App. 615, 52 Am. St. Rep. 485, 35 N.E. 48; Tuttle v. Gilbert Manfg. Co., 145 Mass. 169, 13 N.E. 465; Dice v. Twigant, 161 Ky. 646, L.R.A. 1916F 115, 171 S.W. 195; Hanson v. Cruse, 155 Ind. 176, 57 N.E. 904; Annotation: Sturns v. Pratt, 28 A.L.R. 1448-1519.
Where the right of possession and enjoyment of the leased premises passes to the lessee, the cases are practically agreed, that in the absence of concealment or fraud by the landlord as to some defect in the premises, known to him and unknown to the tenant, the rule of caveat emptor applies, and the tenant takes the premises in whatever condition they may be in, thus assuming all risk of personal injury from defects therein. This doctrine is in harmony with the common-law rule that a lease is a conveyance of an estate or an interest in real property, or a transfer of the right to the possession and enjoyment of real property for a specified period of time, or at will. In other words, it is a demise of real property for a limited period of time. So far as concerns the condition of the premises, the relation created by a lease is substantially similar to that created by a deed or a contract for the sale of real property with the right of possession. By the great weight of authority, the fact that the lessor covenants to repair the premises does not affect this rule, so far as concerns the lessor's liability for personal injuries to the lessee or those in privity with him, due to defects on the premises leased for a private purpose, the possession of which has passed to the lessee, although the existence of the defect is attributable to the failure of the lessor to repair according to his covenant.
8 A.L.R. 766; Hart v. Coleman, 78 So. 201.
The general rule is that an action ex delicto cannot be maintained to recover damages based upon a landlord's breach of covenant to repair, where damages claimed are for personal injuries due to defects in the leased premises in the possession of the tenant.
Hart v. Coleman, L.R.A. 1918E, 219; Note 49 L.R.A. (N.S.) 919; Dustin v. Curtis, 11 L.R.A. (N.S.) 504.
It may be stated, as a general rule, that for a breach of contract in any case the injured party is entitled to recover such damages only as proximately resulted from the breach, and were within the contemplation of the parties when the contract was entered into. Damages which are remote and speculative cannot be recovered.
Hamilton v. Feary, 8 Ind. App. 615, 52 Am. St. Rep. 485, 35 N.E. 48.
A landlord's covenant to repair will not support an action for personal injury due to failure to make repairs, since those injuries are deemed too remote to have been contemplated by the parties when the covenant was given.
Korach v. Leoffel, 168 Mo. App. 414, 151 S.W. 790; DeNegro v. Christmas, 77 Misc. 147, 136 N.Y.S. 364; Murrell v. Crawford, 102 Kan. 118, 169 P. 561; Thompson v. Clemens, 96 Md. 196, 60 L.R.A. 580; Brown v. Toronto General Hospital, 23 Ont. Rep. 599.
The ordinary damages for breach of a general agreement to keep the premises in repair are the expenses of repair and the loss of the use of the premises while the party contracting was in default, and such an agreement in no way contemplates any destruction of life or casualties to the person or property which might accidentally result from an omission to fulfill the agreement.
Miller v. Sullivan, 77 Kan. 252, 15 Ann. Cas. 561, at page 563; Schiff v. Pottlitzer, 51 Misc. 611, 101 N.Y.S. 249; Brown v. Toronto Gen. Hospital, 103 Ontario Rep. 599; Flynn v. Hatton, 83 How. Pr. 333.
Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect to such breach of contract should be such as may fairly and reasonably be considered arising naturally, i.e., according to the usual course of things, from said breach of contract itself, or such as may be reasonably supposed to have been in contemplation of the parties at the time they made the contract as the probable result of a breach of it.
Oneil v. Brown, 158 Ky. 118, 164 S.W. 315; Hadley v. Baxendale, 26 Eng. L. Eq. Rep. 398.
As a matter of law, this contract fixed the measure of recovery, in event of breach, at just exactly what it would take to do those things contemplated by general repairs, outside and inside painting, not to exceed five dollars per month for term of occupancy.
Thompson-Houston Electric Company v. Durant Land Improvement Company, 144 N.Y. 34, 39 N.E. 7.
The cost of the necessary repairs being trivial in comparison with the damages which appellant seeks to ascribe to appellee's failure to repair, it became her duty to make the repairs.
28 A.L.R. 1470-1472.
If, taking the contract as a whole, the cost of special repairs, plus the painting, might be deemed too substantial an outlaw, then appellant is remanded to the other option granted in such cases, to sue for difference in rental value, which she already fixed at five dollars per month.
28 A.L.R. 1472-1477, 1594-1505; 16 R.C.L. 1055.
The alleged contract of the landlord's to repair, in order to keep tenant from moving out is without consideration.
36 C.J. 132; 16 R.C.L. 1033; Marsh v. Serio, 156 Miss. 371, 126 So. 46; Roehrs v. Timmons, 28 Ind. App. 578, 63 N.E. 481; Watson v. Moulton, 100 Ill. App. 560; Strong v. Soodvoisky, 141 Ill. App. 183; Purcell v. English, 86 Ind. 34, 44 Am. Rep. 255; Altsheler v. Conrad, 118 Ky. 647, 82 S.W. 257; Rhoades v. Seidel, 139 Mich. 608, 102 N.W. 1025; Glenn v. Hill, 210 Mo. 291, 16 L.R.A. (N.S.) 699, 109 S.W. 27; Wynne v. Haight, 27 App. Div. 7, 50 N.Y.S. 187; Whitehead v. Comstock, 25 R.I. 423, 56 A. 446.
The contract in question was not one of particular repairs to any special part of house or premises, but was one of general repair. It was necessary that special notice be given to appellee of any such defect to furnish basis for any damage flowing from failure to repair same.
16 R.C.L. 1052; Thompson v. Clemens, 96 Md. 196, 60 L.R.A. 580; Seiber v. Blanc, 76 Cal. 173, 18 P. 260; Staples v. Casey, 43 App. D.C. 477; Mills v. Swanton, 222 Mass. 557, 111 N.E. 384; Sinton v. Butler, 40 Ohio St. 158; Tredway v. Machim, 97 L.T.N.S. (Eng.) 320, 20 Times L.R. 726, 53 Week Rep. 136; Hutchinson v. Cummings, 156 Mass. 329, 31 N.E. 27; Marley v. Wheel-wright, 172 Mass. 530, 52 N.E. 1066.
This court has taken its place with that great number of courts holding that a lease does not carry with it the implication of any obligation to repair, either generally or for any special purpose connected with lessee's business.
Jones v. Millsaps, 71 Miss. 10, 14 So. 440; Plazza v. Richardson, 114 So. 831; Green v. Long, 152 Miss. 117, 118 So. 705; Plaza Amusement Co. v. Rothenberg, 131 So. 350.
Argued orally by J.N. Yawn and R.L. Jones, for appellant, and by Tom Brady, for appellee.
Appellant, desiring to engage in the business of operating a private boarding house, entered into negotiations with appellee for the lease of a certain residence, suitably located and owned by appellee. This was in February, 1929. Appellee expressed his willingness to lease the premises to appellant for the monthly rental of thirty-five dollars. Appellant had examined the house and premises, and, finding same in poor repair, she stated to appellee that, in view of the condition of the house, she could not pay so much as thirty-five dollars per month, but would pay thirty dollars, whereupon appellee stated and agreed that, if appellant would lease the premises at thirty-five dollars, appellee would repair and paint the house, put it in first-class condition, and keep it so, which agreement appellant accepted, and she paid, and continued to pay, the rent at thirty-five dollars per month.
Except for "fixing the water" in the kitchen and the repair of a screen door, appellee did nothing about the repairs. This continued until July 12, 1929, on which date an elderly boarder was injured by the giving way of the banisters on the front steps. Immediately upon this occurrence appellant reported the same to appellee, and stated to him that, unless he would immediately make the repairs to the property as agreed, she would have to make other arrangements. Appellee thereupon renewed his agreement and assurance, stating that, if appellant would remain in the tenancy, he would proceed to the repairs. Nevertheless nothing was done by appellee, and on August 25, 1929, while appellant was attempting to sweep the front porch and in leaning over against the porch banisters in order to complete the sweeping, the porch banisters at that point gave way, throwing appellant to the ground and breaking her arm. Suit was filed by her against appellee to recover damages for the personal injury aforesaid, upon the hearing of which suit the trial court granted a peremptory instruction in favor of appellee.
The above is a sufficient statement of the facts, when it is added that it is not shown that the landlord had any knowledge of any specific or particular dangerous place on or about the premises, or, in fact, that any part was actually dangerous other than perhaps the front steps banisters; or that he had agreed in respect to any such specific or particular repairs. His contract was to repair generally.
There is the notion generally prevailing in the popular mind that a landlord occupies a position similar to that of a master, and that, as the master must furnish his servant with a safe place to work, so must the landlord furnish his tenant with a safe place to live, or else the notion is that the landlord is in a position of superiority, and that the general principles of respondeat superior should apply. But, in the absence of statute, the rule of law is universal that a simple lease of a dwelling or other private premises carries no obligation whatever upon the landlord to repair, if there be no deceit or misrepresentation, or the equivalent thereof, by the landlord. The lessee takes the premises as he finds them, and he must return them as nearly as possible in like condition. Jones v. Millsaps, 71 Miss. 10, 14 So. 440, 23 L.R.A. 155. Or as has been expressed in a discriminating annotation on this subject, 8 A.L.R. page 766: "Where the right of possession and enjoyment of the leased premises passes to the lessee, the cases are practically agreed that, in the absence of concealment or fraud by the landlord as to some defect in the premises, known to him and unknown to the tenant, the rule of caveat emptor applies, and the tenant takes the premises in whatever condition they may be in. . . . This doctrine is in harmony with the common-law rule that a lease is a conveyance of an estate or an interest in real property, or a transfer of the right to the possession and enjoyment of real property for a specified period of time, or at will. In other words, it is a demise of real property for a limited period of time. So far as concerns the condition of the premises, the relation created by a lease is substantially similar to that created by a deed or a contract for the sale of real property with the right of possession."
There being, therefore, no obligation on the part of the landlord to repair as a result of a simple lease of the premises, the mere fact that he remains the owner of the remainder of the estate, less that granted by the lease, imposing upon him no greater obligations in respect to repairs than if that estate were the property of a stranger to the contract of lease, then it must follow as a logical consequence that, when the landlord makes a contract to repair the premises, his obligations under said contract to repair are no greater than, nor anything different from, the obligations that would be incumbent upon a stranger or independent contractor who had contracted to make the repairs, and the liability for a failure to execute the contract would be exactly the same as that which a stranger-contractor would incur. The obligation would therefore be one not at all imposed by law, but would be purely contractual, and the liability for nonperformance would be, not upon negligence or in tort, but upon breach of contract.
The obligation being purely contractual, and the liability being not in tort but upon breach of contract, the rule of liability is that which was long ago announced in the case of Hadley v. Baxendale, 9 Exch. 341, 2 C.L.R. 517 and which has been adopted and repeatedly reaffirmed in this state, as follows: "Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect to such breach of contract should be such as may fairly and reasonably be considered either as arising naturally, i.e., according to the usual course of things, from said breach of contract itself, or such as may be reasonably supposed to have been in the contemplation of the parties at the time they made the contract as the probable result of a breach of it."
The damage or injury must be such as would arise naturally according to the usual course of things, or else it must have been contemplated as a probable result of the breach. The rule, therefore, does not embrace extraordinary events or those which may possibly happen; but only those which are natural or probable. And thus we arrive at the question here in hand: Does the failure of a landlord to perform his contract to repair make him liable for personal injuries resulting from the want of repair? Or to put the question that is the more exactly before us: Does the failure of a landlord to perform his contract to repair the premises generally, as distinguished from specific repairs undertaken to be made, render him liable for personal injuries occurring at any place on the premises which happens to be out of repair?
Whatever the persuasiveness with which the affirmative of that question would appeal to the individual mind as being the more agreeable to a sense of abstract justice, we think the judicial answer must be in accordance with long-settled legal principles and according to the manner in which the definite preponderance of judicial opinion throughout the country has applied those principles to a specific question upon which so much of the maturity of legal wisdom has been brought to bear as there has been upon the question here to be again answered. The exact legal issue has never been decided by this court, but it has been under review in nearly every state in the Union, and the great weight of authority has responded that personal injuries are too remote to be included in an action for breach of covenant to generally repair; that such an injury is not a natural or probable consequence which ordinarily and reasonably could be anticipated from a breach of covenant to generally repair; that, in order to recover such damages, there must be shown some act of negligence or misfeasance, beyond the mere breach of the covenant to repair.
We do not attempt to cite the hundreds of cases with which the books abound on this identical question. The citations from textbooks and the wealth of cases mentioned in the able briefs of counsel in this case will be found in the synopsis of their briefs, printed in the official reports. We draw this opinion to a close with a quotation from Thompson v. Clemens, 96 Md. 196, 53 A. 919, 921, 60 L.R.A. 580: "It is impossible in an opinion of anything like a reasonable length to undertake to discuss the numerous cases on that subject, and it would be useless to attempt to reconcile the expressions used in many of them. We have no doubt, however, that no action, either in contract or in tort, by a tenant, or one of his family, against a landlord, to recover damages for personal injuries, should be sustained merely because the latter has been guilty of a breach of contract to make necessary repairs in the premises demised."
Affirmed.