Dice's Adm'r v. Zweigart's Adm'r

• Decision Date: 15 December 1914
• Parties: DICE'S ADM'R v. ZWEIGART'S ADM'R ET AL.
• Court: Kentucky Court of Appeals

171 S.W. 195

161 Ky. 646

DICE'S ADM'R v. ZWEIGART'S ADM'R ET AL.

Court of Appeals of Kentucky.

December 15, 1914

Appeal from Circuit Court, Mason County.

Action by Sherman Dice, as administrator of Laurence Dice, deceased against J. G. Zweigart's administrator and others. From a judgment denying relief, plaintiff appeals. Affirmed.

Frank P. O'Donnell, J. G. Wadsworth, and Allan D. Cole, all of Maysville, for appellant.

Worthington Cochran & Browning, of Maysville, for appellees.

CLAY C.

John G Zweigart was the owner of a farm in Mason county, which was under lease to Sherman Dice, and had been occupied by him from year to year since March, 1907. John G. Zweigart, who had been paralyzed and unable to walk without assistance for several years, died in December, 1910. J. F. Barber, qualified as his administrator. In January, 1911, about a month after John G. Zweigart's death, Laurence Dice, a son of Sherman Dice, and who at the time was five years of age, fell into a cistern near the house on the farm rented by his father and was drowned. Sherman Dice, as administrator of Laurence Dice, brought this action against John G. Zweigart's administrator, his brother, C. F. Zweigart, and his sister, Anna Marie Zweigart, to recover damages for his son's death. A demurrer was sustained to the petition as against C. F. Zweigart and Anna Marie Zweigart, and the petition as to them dismissed. No appeal was taken from that judgment. Afterwards the case as to John G. Zweigart's administrator went to trial, and at the close of the testimony for plaintiff the trial court peremptorily instructed the jury to find a verdict in favor of the defendant.

The case is predicated on a promise by decedent to repair the cistern, and on the further fact that he retained control of the cistern for the purpose of making repairs. The cistern in question is located a few feet from the house occupied by Sherman Dice and family. At the time of the accident it was covered by a large rock. In the center of this rock was a hole. The hole was covered by a plank, and on top of the plank was placed a rock weighing 25 or 30 pounds. There was sleet on the ground, and the little boy requested his mother to let him go sleighriding. She claims that she refused to permit him to do so. Later on he asked permission to go out and respond to a call of nature. She unbuttoned his trousers and he then left the house. At the same time she cautioned him not to go near the cistern. A little later she called him to her, and, receiving no response, went out into the yard. The rock and plank had been removed from the hole in the rock covering the cistern. The boy's sled was near by. On investigation it was found that the boy had fallen into the cistern, and life was extinct. A brother of the boy testified that in July, 1909, his father and mother said to John G. Zweigart that unless he would fix the cistern they would not rent the place for the following year, commencing March 1, 1910. Zweigart replied that if they would stay there one more year he would fix the cistern. In April, 1910, witness' father asked Mr. Zweigart what about the cistern. Zweigart answered, "Mr. Dice, I am going to fix that cistern." There is also evidence to the effect that Sherman Dice asked permission to put in a pump and take it out of the rent, but Mr. Zweigart replied that he was going to see about putting in a pump himself.

This is not a case of an open, unguarded, and uncovered cistern, or other condition of the premises which amounted to a nuisance. The cistern was covered, and it became dangerous only because the covering was removed. It is not a case of fraud on the part of the landlord in misrepresenting that he had placed the property in good repair. It is not a case of lease of public property, where the landlord owes some duty to the public and to his tenant. It is not a case where a portion of the leased premises is reserved to the common use of tenants. It is not a case where the landlord reserves control over the premises, or of that defective portion out of which the injury grew. The mere allegation that the landlord reserved control over the cistern, based alone upon the allegation and proof that he promised to repair the cistern, unaccompanied by any contractual reservation to that effect, or exercise of control, does not show such control of the dangerous portion of the premises as to impose any liability on the landlord because of such defective condition. It is not a case involving concealment of defects in the property which are known to the landlord, and unknown to the tenant, or not discoverable by reasonable inspection. It is not a case where the landlord undertook to make repairs, and performed the work in a negligent manner. It is simply a case of the landlord's promise to repair the cistern, and of his failure to do so.

The only question to be considered, therefore, is whether or not the landlord under these circumstances is liable in damages for personal injuries received by a member of his tenant's family. The child in this case was not on the premises by invitation of the landlord. He was there by virtue of the relation which he sustained as a member of the tenant's family. If there be any liability, therefore, it grows out of that relation; and if the landlord be not liable to the tenant under the same circumstances, he is not liable to a member of the tenant's family. Ordinarily, of course, the landlord is not under a duty to use ordinary care to furnish a tenant reasonably safe premises in which to live. The tenant takes the premises as he finds them. As to him the doctrine of caveat emptor applies. Here the dangerous condition was known to the tenant. The law imposed no duty on the landlord to repair the premises, and no liability for personal injuries growing out of the defective condition of the premises. It is difficult to perceive upon what theory a mere agreement to repair could impose a liability not imposed by law. Of course, cases may arise where a legal duty arises from a contractual relation, and for a breach thereof an action of tort will lie; but such a case is altogether different from a duty entirely dependent upon a contract in which it is assumed. Where an ordinary contract is violated, the damages are limited to such as are within the reasonable contemplation of the parties. Manifestly, if a third party agreed to repair the cistern, there would be no liability for personal injuries growing out of the failure to repair. Since the duty of the landlord to repair does not grow out of the legal relation existing between him and the tenant, his agreement and failure to repair should subject him to no greater liability than a third party, who had violated his agreement to repair; for such consequences are no more within the contemplation of the parties in the one case than in the other. As was well said by the court in the case of Tuttle v. George H. Gilbert Mfg. Co., 145 Mass. 169, 13 N.E. 465:

"The action of tort has for its foundation the negligence of the defendant, and this means more than a mere breach of a promise. Otherwise, the failure to meet a note, or any other promise to pay money, would sustain an action in tort for negligence, and thus the promisor be made liable for all the consequential damages arising from such failure."

In the recent case of Dustin v. Curtis, 74 N.H. 266, 67 A 220, 11 L.R.A. (N. S.) 504, 13 Ann.Cas. 169, the court, after...