Hines v. Wilcox

• Decision Date: 05 March 1896
• Citation: 34 S.W. 420,96 Tenn. 328
• Parties: HINES v. WILCOX. STENBERG et ux. v. SAME.
• Court: Tennessee Supreme Court

34 S.W. 420

96 Tenn. 328

HINES v. WILCOX.

STENBERG et ux. v. SAME.

Supreme Court of Tennessee.

March 5, 1896

On rehearing. Denied.

For original opinions, see 33 S.W. 914, 917.

WILKES J.

In these causes petitions to rehear have been filed, and pressed with much earnestness. The trial judge in the court below correctly laid down the law in regard to the tenant, and imposed upon her the risk of the premises, if she knew, or by the exercise of reasonable care and diligence could have known, of their dangerous condition. It is complained that this court imposed upon the landlord a like degree of care in ascertaining whether his premises were in safe condition when he let them. The correctness of the rule and liability of the landlord is not denied when he has actual knowledge of the danger and fails to disclose it, but denied so far as it requires him to exercise reasonable care and diligence to acquaint himself with their condition. The facts assumed by counsel in arguing this point are worthy of notice. In one portion of his briefs he says: "Neither the landlord nor his agents had any notion (we suppose he means notice or knowledge) of the condition of the porch. *** They so swear, and there is no contradictory evidence." In another portion of his briefs he says: "The premises were old, and, to my belief, the porch was obviously dangerous at the outset." And again: "The porch was, at the outset obviously, out of fix. No ordinarily careful person would have used it. That is the simple truth of the case." We think the evidence tends to show a state of facts between these two extremes, to wit, that the porch was unsafe when the premises were let, partly from the manner of construction, and partly from age, and that this was either known to, or by reasonable care could have been known to, the landlord; but it was not so obviously dangerous as to have deterred an ordinarily careful person from using it, or seeing its danger. It is said that the landlord's liability to his tenant is more restricted than it is to third persons, and this is unquestionably so, in so far as it rests upon the contract between the parties, and wan of care in the tenant; but, in this and similar cases, there is a separate and distinct ground of liability, depending, not upon contract or want of contract, but upon the obligation the landlord or landowner is under to his tenant, as well as third persons, not to expose them to danger which he knows or could know by the exercise of reasonable diligence. The rule laid down does not place upon the landlord the obligation of an insurer or warrantor by contract, nor does it impose the extreme duty of constant care and inspection, but it does impose upon him the duty of reasonable care and diligence to inform himself of the condition of the property which he proposes to let; and if, when he leases, he knows, or by the exercise of reasonable care and diligence should know, that the premises are dangerous, it is his duty to make them safe before he leases, or inform the tenant of their condition and if he does not, he must respond, to any person not in fault, for damages caused by such condition of the premises whether tenant or third person. Nor does this holding imply, as counsel suggests, that the tenant is thereby entirely relieved from the duty of proper diligence on his part, and that the landlord is virtually made guardian for the tenant. The obligation of the tenant to exercise proper diligence was properly stated by the trial judge, and there is nothing in the ruling of this court that can legitimately bear the construction given to it by counsel to relieve the tenant of such care.

The contention in the Stenberg case is, mainly, that, being a boarder, she was the guest of the tenant, and not a third person in the eye of the law. It suffices to say, upon this point, without noting other considerations, that the evidence shows that the house was let to be used as a boarding house and recommended by the landlord for that purpose. If it was unsafe for that purpose, which is a quasi public purpose, and defendant knew it, or could by reasonable care and diligence have known it, he should respond in damages to any person injured on the premises. The boarder is there as much by invitation of the landlord as of the tenant. She is there, not strictly as a guest, but as a third person, legitimately on the premises on business, for the purpose for which they were let. The rule is that, if the landlord is guilty of delictum or negligence, he is liable; otherwise, not. And in this view of the case, the tenant and his boarder stand upon the same footing, the contract being out of the way. The tenant may have more extensive rights if she expressly contracts for safe premises, and is assured of their safety; and, on the other hand, her rights may be restricted if she is guilty of negligence in ascertaining for herself the condition of the premises when she rented them, or took them knowing them to be unsafe. The rule, as laid down by this court, imposes reasonable care and good faith on both landlord and tenant, in the absence of a contract to make the premises safe, or a warranty of their condition; and, keeping this rule in view, the tenant and his boarder are entitled to as much protection against the landlord as is the stranger passing along the street, or occupying adjoining premises. It cannot be the law that the owner of an hotel which is in an unsafe condition, known to him to be so, or by reasonable care and diligence he could know, can lease it to a tenant, who exercises reasonable care and diligence, and does not discover the danger, and then escape liability to either the keeper of the hotel, or his family or servants, or the persons who enter the hotel for its accommodation. What the hotel keeper's liability may be at the same time is not a question now before us. While many of the cases cited in the opinion are cases where the liability was held to exist as to third persons, there is no difference between such third persons and the tenant and his servants, the matter of contract and negligence of tenant being out of the way, as is said...