Holzhauer v. Sheeny

• Decision Date: 31 October 1907
• Citation: 127 Ky. 28,104 S.W. 1034
• Parties: HOLZHAUER v. SHEENY.
• Court: Kentucky Court of Appeals

104 S.W. 1034

127 Ky. 28

HOLZHAUER v. SHEENY.

Court of Appeals of Kentucky.

October 31, 1907

Appeal from Circuit Court, Campbell County.

"To be officially reported."

Action by Bessie Sheeny, by next friend, against Amelia Holzhauer. Judgment for plaintiff. Defendant appeals. Reversed and remanded.

Sam E Anderson, for appellant.

A. M Caldwell, for appellee.

O'REAR C.J.

Appellant leased a tenement to the father of the infant appellee for the residence of his family. While using a privy closet on the premises, a defective seat, made insecure by rotting planks on which it rested, gave way with the infant appellee precipitating her into the vault, and injuring her. In this suit by her, prosecuted by her next friend, against the landlord for damages, there resulted a verdict and judgment in her favor. On the appeal, prosecuted by the landlord, the following errors are assigned for reversal: (1) That the petition and the evidence failed to show a cause of action, in that it did not appear, either that the landlord had agreed to keep the demised premises in repair, or that she knew of their defective condition when the contract of renting was entered into. (2) That irrelevant testimony was admitted against the defendant, first, in allowing evidence of what her agent said out of court touching his knowledge of the defect; and, second, in admitting evidence as to an alleged conversation between plaintiff's attorney and appellant over a telephone touching her own knowledge on that subject. (3) That the affidavit filed by the plaintiff for a continuance was not sufficient ground for putting defendant upon election to suffer a continuance or allow the affidavit to be read as the deposition of the absent witness.

Taking up the questions in the order stated, it does not appear when the contract of renting was made, but it does appear that it was some time before the accident to appellee. The petition charges that "the sills and timbers upholding the seat in said closet were defective, rotten, and dangerous, and that this fact was well known to the defendant, and her authorized agent in charge of said premises, long enough prior to the injuries received by plaintiff, as hereinafter set out, so that defendant might have remedied the same; that neither the plaintiff nor her father knew of the dangerous and defective condition of said closet or privy, nor could they by the exercise of ordinary care have discovered same, because of the character of its construction; that defendant and her said agent negligently failed to apprise plaintiff or her father of the dangerous condition of said closet or privy, and suppressed their knowledge thereof." The proof, to say the most of it, is no more explicit than the charge above quoted. Neither discloses when the defendant or her agent acquired their knowledge of the defects in the seat. From aught that appears, it may have been learned by them (if they knew it, in fact) after the contract of leasing was made, and after the tenant had entered upon the premises. The sufficiency of the plaintiff's case must therefore depend upon that state of facts. It will not be disputed that the knowledge of the agent who represented the landlord in making the lease is the equivalent of such knowledge on the part of the landlord herself, as affecting her liability. It is not deemed necessary, in view of the very recent utterances of this court on the subject of the landlord's liability respecting insecure tenements (Franklin v. Tracy, 117 Ky. 267, 77 S.W. 1113, 78 S.W. 1112, 63 L. R. A. 649), and the well-nigh universality of the authorities elsewhere to the same effect, to more than state the prevailing principles of law on this subject.

The rule of caveat emptor applies to a contract of letting. The tenant must take the premises as he may find them. There is no implied covenant on the part of the landlord that they are fit for the purposes for which they are rented, or that they are in any particular condition; but there is this extension of the rule: If the landlord knows that the premises are defective or dangerous, and such defect is not discoverable by the tenant by ordinary care, and the landlord conceals or fails to disclose the dangerous condition, he is liable to the tenant, his family and servants, or even his guests, for injuries sustained therefrom. Coke v. Gutkese, 80 Ky. 598, 44 Am. Rep. 499; Franklin v. Tracy, supra, and authorities there reviewed. The qualification of the rule of law just noted rests upon the notion of deceit practiced by the landlord; for the general rule itself is founded upon a contract relation. The parties may by contract, as by warranty, or covenant to repair or keep in repair, regulate their liability upon a different basis; but, in the absence of special agreement, the implication of the law is that the tenant agrees to take the premises as they are, and the landlord guarantees nothing except the title-- that is, peaceable possession. Each is expected to look out for himself; and if the premises are fallen into disrepair, unless it be stipulated otherwise in the contract, the tenant must make the needed repairs at his own expense, or use the premises at his own risk in their dilapidated state. The rent is supposed to be regulated upon this state of the matter. As the rule of caveat emptor implies, the tenant must look for himself. If, however, there is a latent and dangerous defect, which is not discoverable by observation, or by ordinary care, but which the landlord has knowledge of, it is deemed deceit for him not to disclose the fact to the tenant before the contract of renting is entered into. It is equivalent to positive misrepresentation to the tenant to induce him to enter into the contract. Therefore such knowledge, and implied misrepresentation, having misled the tenant into making a contract without warranty of condition, he will be protected against the consequences of the fraud practiced upon him. The circuit court, however, went beyond this. It was ruled at the trial that the knowledge of the landlord of the unsafe condition of the tenement, whenever obtained, must be communicated to the tenant, or the landlord will be liable. This position is wholly out of harmony with the rule itself and the reason upon which it rests. Nor...