Hodges v. Hilton

• Decision Date: 27 May 1935
• Docket Number: 31618
• Citation: Hodges v. Hilton, 173 Miss. 343, 161 So. 686 (Miss. 1935)
• Court: Mississippi Supreme Court
• Parties: HODGES v. HILTON

161 So. 686

173 Miss. 343

HODGES v. HILTON

No. 31618

Supreme Court of Mississippi

May 27, 1935

Suggestion Of Error Overruled July 24, 1935.

(En Banc.)

1. LANDLORD AND TENANT.

Owner expressly agreeing with tenant to repair decayed supports of second-story porch held bound to anticipate that personal injuries would naturally and probably result from use of porch, if not repaired.

2. LANDLORD AND TENANT.

Owner's express agreement with tenant to repair decayed supports of second-story porch held for benefit of tenant and those lawfully upon the premises in tenant's right.

3. LANDLORD AND TENANT.

Owner's negligent failure to repair decayed supports of second-story porch as promised tenant, and consequent injury when porch fell while in use by person to whom tenant had let second floor, rendered owner liable to an action in tort for damages by person injured.

HON. R W. CURTRER, Chancellor.

APPEAL from the chancery court of Adams county, HON. R. W. CURTRER Chancellor.

Attachment in chancery by Mrs. Eula Hilton against Mrs. A. J. Hodges. Demurrers to complainant's complaint were overruled, and an appeal was granted to defendant to settle controlling principles involved. Affirmed and remanded.

Affirmed and remanded.

Brandon & Brandon, of Natchez, for appellant.

The bill of complaint alleges no agreement or warranty as to suitableness for use or safety of the premises on the part of the lessor to either the lessee or the sub-lessee.

Causey v. Norwood, 156 So. 592, 170 Miss. 874.

It is the well settled law of this state that in the absence of a contract to make repairs the landlord is under no obligation so to do.

Joor v. Elder, 1 Miss. 503; Jones v. Millsaps, 71 Miss. 10, 14 So. 440, 23 L.R.A. 155; Causey v. Norwood, 156 So. 592, 170 Miss. 874; Plaza Amusement Co. v. Rothenberg, 159 Miss. 800, 131 So. 350.

It is of course recognized that where a landlord enters into a covenant to make repairs, then such covenant is a binding obligation; but the breach of that contract for specific repairs is not a continuing breach, but one which is breached when the landlord fails to make the repairs in the time provided for in his contract.

16 R. C. L., Landlord and Tenant, sec. 580, pages 1060-1095; 8 A.L.R. 766.

It has been held that even though an agreement by a landlord with his tenant might be such a one as would support an action by the tenant against the owner, the sub-tenant, in the absence of any contractural relation, would not have a similar right, although there is authority to the contrary.

36 C. J., Landlord and Tenant, pages 228 and 229, note 60; Degnan v. Doty, 246 S.W. 929; Hollander v. W. & E. Realty Co., 172 N.Y.S. 445; Hopman v. Reinhardt, 164 N.Y.S. 676; Roberts v. Fulton, 24 Ohio Cir. (N.S.) 223.

Whittington & Brown, of Natchez, for appellee.

There have been numberless cases decided throughout the different states upon the question of the liability of the landlord for personal injuries to the tenant, or one entering under the tenant's title, when the landlord had obligated himself to repair. Of these cases a great number hold that the landlord is not liable, but a careful examination of these cases discloses that the agreement and promise of the landlord to repair was general, named no particular defect, contemplated no definite, specific point of danger. These cases reason, therefore, that when the landlord has breached a covenant which contemplates only general repairs, personal injuries to the tenant, or one under the tenant's title, are too remote, and cannot be said to have been within the contemplation of the landlord as a probable result of his breach.

Rich v. Swalm, 137 So. 325, 161 Miss. 505; Hart v. Coleman, 78 So. 201.

It is the settled and general rule that the duties and liabilities of a landlord to persons on the leased premises by the license of the tenant are the same as those owed to the tenant himself. For this purpose they stand in his shoes.

16 R. C. L. 1067, page 588.

There are innumerable cases wherein there was no express privity of contract between the plaintiff and the landlord, cases wherein the landlord had obligated himself to repair, where the plaintiff was the licensee of the tenant, and wherein the landlord was held liable.

Collison v. Kurtner, 216 S.W. 1059, 8 A.L.R. 760; Glidden v. Goodfellow, L.R.A. 1916F 1073, 144 N.W. 428; Moore v. Steljes, 69 F. 518; Sontag v. O'Hare, 73 Ill.App. 432; Stillwell v. So. Louisville Land Co., 52 L.R.A. 325, 58 S.W. 626; Flood v. Pabst Brewing Co., L.R.A. 1916F 1101, 149 N.W. 485.

There is some confusion among the authorities as to whether actions for personal injuries against the landlord, after a promise to repair, are actions in tort or for breach of contract. This court in the case of Rich v. Swalm, 137 So. 325, 161 Miss. 505, held that the action in that case was ex contractu. We are of the opinion that the case now before the court is radically different from the case of Rich v. Swalm. The rights and obligations are different. In the present case, however, this question is immaterial. Should this court be of the opinion that the action is in tort, then the negligence of the appellant is the proximate cause of the appellee's injuries. Should it be of the opinion that the action is ex contractu, then certainly the personal injury to the appellee was the sole and only probable consequence of the violated promise.

Western Union Tel. Co. v. Westmoreland, 151 Ala. 319, 44 So. 383; Miles v. Janvrin, 82 N.E. 708, 13 L.R.A. (N.S.) 378.

Argued orally by Gerard Brandon, for appellant.

OPINION

Cook, J.

This suit, which is an attachment in chancery, was instituted in the chancery court of Adams county against the appellant, Mrs. A. J. Hodges, a nonresident of this state. The bill of complaint, as amended, alleged that the appellant was the owner of a two-story brick residence or building located in the city of Natchez, along the rear of which is an upstairs back porch, approximately fourteen feet above a brick floor on the ground level beneath the same; that, on or about June 1st, appellant leased said building to Mrs. Effie Barnes, and afterwards the appellee and her husband leased from Mrs. Barnes certain rooms on the second floor of the building, with the right to the use and enjoyment of the upstairs rear porch.

The bill further alleged that, at the time Mrs Barnes leased the building, the said rear porch was in an unsafe and dangerous condition on account of the fact that the joists or supports beneath the floor of the porch were rotten, worm-eaten, and weakened, that at that time Mrs. Barnes notified the appellant of the dangerous and unsafe condition of the porch, and that, as part of the consideration for the rental of said property and as a...