This
is an action for actionable negligence brought by plaintiff
against defendant alleging damage. The defendant denied
negligence and set up the plea of contributory
negligence.
The
plaintiff in her complaint, alleged, in part: "That said
steps at the time of plaintiff's first inspection of the
premises, were made of brick, and that a number of the bricks
were loose and a larger number had been removed from the
tread of the steps, and that the dangerous condition of the
steps was readily apparent to even a casual inspection; that
in order to repair said steps it would be necessary to
replace the bricks that had been removed and reset them in
mortar, and reset in mortar the bricks that were loose. ***
That defendant sent workmen out to the premises to make said
repairs, and that said workmen worked at said repairs from
time to time during October and November 1937, and announced
that the job was completed sometime after the first of
December, 1937. *** That on the night of December 31, 1937
or in the early morning of January 1, 1938, plaintiff and her
husband were going down the steps, which were well lighted
and that plaintiff's husband had hold of plaintiff's
arm, and that in going down the steps together, side by side
plaintiff's position on the steps was off the center and
to the left side of said steps, and on a part of said steps
that was off the regular tread of said steps and which had
not been used by plaintiff since said repairs, and that as
plaintiff stepped on one of the bricks, the brick turned
under her foot and threw her violently down the steps
breaking and shattering the bone of her upper left arm, and
that plaintiff was completely disabled, etc. *** That the
said defendant in making repairs to said steps, was negligent
in that the said bricks on that portion of the steps from
which plaintiff was precipitated, as hereinbefore set out,
were not properly encased ha mortar and were left in an
insecure and loose condition, by reason of which carelessness
and negligence the said steps were in an insecure and unsafe
condition at the time of the said injuries, and which said
negligence was the proximate cause of the injuries
hereinbefore set out. *** That the defendant was negligent
and responsible for said damages, for that the servants
employed by it conformably to its specific contract to repair
said steps, instead of properly repairing the same and
properly setting the bricks in mortar, negligently and
carelessly replaced several bricks on the side of the steps
apparently without any mortar at all, and left them loose and
freely movable, and at the same time left said steps with the
appearance of having been properly repaired and in such a
condition as would deceive any person into believing that the
steps were safe and ready for use, and that said
defendant's servants or employees stated that said steps
had been completely repaired, and had announced that they had
finished the job on the steps, leaving the plaintiff and her
husband under the impression and secure in the feeling that
the steps had been repaired as had been contracted by said
defendant."
The
defendant in its answer says: "The defendant says that
plaintiff's husband took possession of said premises
under said written agreement on October 6, 1937, and that
shortly thereafter the defendant entered into an agreement
with one W. R. Douglas, a reputable, reliable and competent
builder and contractor to make certain repairs to said house,
but said contract with the said Douglas did not include or
embrace any repairs to the steps referred to in
plaintiff's complaint. That the workmen referred to ***
were sent by the said Douglas and not by this defendant, and
said workmen were employed and paid by the said Douglas and
were working for the said Douglas, and this defendant had no
authority or control over the said workmen. *** Answering
further the complaint the defendant again denies that it had
any agreement with anyone with respect to repairs of said
steps and did not authorize or ratify
any such repairs. The defendant alleges
that it had no knowledge whatever of any defect in said steps
either before or after the occupancy of said premises by the
tenant and the first notice or knowledge that the plaintiff
had claimed damages on account of the injury referred to in
the complaint was a letter from plaintiff's attorney
dated December 14, 1938, or approximately one year after
plaintiff's alleged injury. And in this connection the
defendant alleges that at the time written agreement was
entered into as hereinbefore alleged that there was no
noticeable defect in said steps and that the use of said
steps, per se, was in no way dangerous, and that there was
nothing about the appearance of said steps to put either the
plaintiff or the defendant on notice of the alleged condition
of same."
In
the further answer it is said: "That such repairs as the
defendant undertook to make were done through an agreement
with a reputable, competent and reliable contractor and
builder. That the contract between said contractor and the
defendant did not provide for any such repairs as alleged in
the complaint and the defendant is advised and believes that
said contractor did not in fact make, or attempt to make any
repairs to said steps," etc.
The
issues submitted to the jury, and their answers thereto, were
as follows:
"1.
Was the plaintiff damaged by the negligence of the defendant?
Ans: Yes.
"2.
If so, did the plaintiff by her own negligence contribute to
her injuries as alleged in the answer? Ans: No.
"3.
What amount, if any, is plaintiff entitled to recover of the
defendant? Ans: Two thousand ($2,000) Dollars."
The
defendant made numerous exceptions and assignments of error
and appealed to the Supreme Court. The material ones and
necessary facts will be set forth in the opinion.
C.
D. Weeks and L. B. Prince, both of Hendersonville, for
plaintiff.
R.
L. Whitmire, of Hendersonville, for defendant.
CLARKSON
Justice.
At the
close of plaintiff's evidence and at the close of all the
evidence, the defendant in the court below made motions for
judgment as in case of nonsuit. C.S. § 567. The court below
overruled these motions and in this we can see no error.
This
action is brought by plaintiff, a tenant, against the
defendant, the landlord, for actionable negligence.
It is
well settled in this jurisdiction, as was said in Salter
v. Gordon, 200 N.C. 381, 382, 157 S.E. 11, 12: "In
the absence of an agreement as to repairs, the landlord is
not obligated to keep the building in repair for the benefit
of his tenant. Smithfield Improvement Co. v.
Coley-Bardin, 156 N.C. 255, 72 S.E. 312, 36 L.R.A.
(N.S.) 907; Fields v. Ogburn, 178 N.C. 407, 100 S.E.
583; Tucker v. [Park] Yarn Mill Co., 194 N.C. 756, 140 S.E.
744." Williams v. Strauss, 210 N.C. 200, 201,
185 S.E. 676.
In
Mercer v. Williams, 210 N.C. 456, 458, 459, 187 S.E.
556, 558, the rule is again stated: "The general rule
is, that a landlord is not liable to his tenant for personal
injuries sustained by reason of a defective condition of the
demised premise, unless there be a contract to repair which
the landlord undertakes to fulfill and does his work
negligently to the injury of the tenant. Fields v.
Ogburn, supra [178 N.C. 407, 100 S.E. 583]; Galvin
v. Beals, 187 Mass. 250, 72 N.E. 969."
In the
Fields case, supra, Hoke, J., goes into the subject with
thoroughness, citing a wealth of authorities, and says at
page 408 of 178 N.C., at page 583 of 100 S.E.: "In the
absence of express stipulation on the subject, there is
usually no obligation or assurance on the part of the
landlord to his tenant that the premises will be kept in
repair, or that the same are fit or suitable for the purposes
for which they are rented. It is true that in case of latent
defects of a kind that import menace of appreciable injury
when these are known to the landlord, and of which tenant is
ignorant and not likely to discover on reasonably careful
inspection, liability has been recognized and recoveries
sustained both on the ground of negligent breach of duty and
at times for fraud and deceit. *** In Galvin v.
Beals, 187 Mass. 250 [252], 72 N.E. 969, injury from a
defective railing on a piazza, recovery was denied, the court
stating the general position applicable as follows: 'The
general rule in this commonwealth must be considered as
settled that a tenant cannot recover against his landlord for
personal injuries occasioned by the defective
condition of the premises let, unless the landlord agrees to
repair, makes the repairs, and is negligent in making
them."' Miles v. Janvrin, 196 Mass. 431,
439, 82 N.E. 708, 13 L.R.A.,N.S., 378, 124 Am.St. Rep. 575.
The
judge in the court below charged the jury correctly, to which
no exception was taken, as follows: "Now, gentlemen of
the jury, the Court instructs you, as a matter of law, the
general rule is: 'That the landlord, that is, the
defendant in this case is not liable to the tenant for
personal injury (and "tenant" includes his family
and wife), the landlord is not liable to the plaintiff for
injuries from the demised premises, that is, the defendant,
as a general rule of law, would not be liable to the
plaintiff for any personal injury sustained by reason of any
defective condition there around the premises, but if there
is a contract to repair and the landlord undertakes to
fulfill the contract and does the work negligently to the
injury of the plaintiff, in that case, gentlemen of the jury,
the landlord would be liable."'
In the
present action there was an express stipulation between the
landlord and the tenant to repair. In the lease is the
following: "The...
