Perez v. Raybaud

Decision Date04 February 1890
Citation13 S.W. 177
PartiesPEREZ <I>v.</I> RAYBAUD.
CourtTexas Supreme Court

L. E. Trezevant, for plaintiff in error.

COLLARD, J.

Suit by plaintiff in error, servant of a tenant, against defendant in error, the owner of the rented premises, for damages resulting from the falling of a cistern. The petition alleged that defendant, the owner of the premises, leased them to A. Watts to use as a restaurant; that he was employed by Watts; that there was a cistern upon the premises of the capacity of 8,000 gallons, which, because of its defective supports, (the same being decayed and insufficient,) and because of the weight of water it contained, fell upon plaintiff while he was in the discharge of his duties, without his fault, causing serious and permanent physical injuries; that the defect in the cistern existed at and before the lease to Watts; that defendant knew of the defect in the cistern and its supports before the injury, and, at the request of Watts, had promised to have the same repaired before it fell, but had failed and neglected so to do; that plaintiff was at the time of the injury ignorant of the unsafe condition of the cistern; that its bad condition was not the result of temporary and unusual use and wear, but of age and natural decay. The court below sustained a general demurrer to the petition, and the case is here on writ of error, with a general assignment by plaintiff that the court erred in sustaining the demurrer. There is no brief on file for defendant.

It is well settled that the owner of leased premises is liable to the public or to third persons for injuries resulting from a defective structure on the premises, when the defect existed at the time the lease was made, or when he had covenanted to repair, and keep in repair. Thomp. Neg. 317; Marshall v. Heard, 59 Tex. 267; Owings v. Jones, 9 Md. 108; Grady v. Wolsner, 46 Ala. 381; Helwig v. Jordon, 53 Ind. 21. The case at bar is not an action by a stranger, but by the servant of a tenant against the owner; and in such case the rule seems to be that the landlord is liable only when he had contracted or is under obligation to keep the tenement in repair, or has been guilty of fraud or deceit which would release the tenant from his implied obligation to repair. "It is a general rule," says Mr. Thompson in his work on Negligence, (volume 1, p. 323, § 3,) "that, in the absence of fraud or deceit, there is no implied covenant that the demised premises are fit for occupation, or for the particular use which the tenant intends to make of them. * * * Therefore the tenant has no remedy against the landlord for suffering the premises to get out of repair, * * * and this rule extends to servants and others entering under the tenant's title." In Jaffe v. Harteau, 56 N. Y. 401, the court states the doctrine as announced in the foregoing quotation, and say: "The question must be regarded as settled by authority." The action in that case was against the landlord for an injury of the wife of the sublessee, and, referring to the case of Godley v. Hagerty, 20 Pa. St. 387, which held a contrary doctrine, say that, in that case, "some importance was attached to the fact that the building was erected by the defendant. This may have been regarded as proper in that case, as tending to show him guilty of fraud;" and the court proceeds to show that cases where one erects a nuisance on his premises, and afterwards parts with the possession, have no application to the case under consideration; and then concludes, that "there is no reason for holding the lessor, in the absence of any agreement or fraud, liable to the tenant for the present or future condition of the premises, that would not be equally applicable to a similar liability sought to be imposed by a grantee in fee upon his grantor." The following cases, besides those cited in the foregoing case, assert the same doctrine, that there must be an express covenant or agreement by the lessor to keep in repair, in order to make him liable to the tenant. Scott v. Simons, 54 N. H. 431; Brewster v. De Fremery, 33 Cal. 341; O'Brien v. Capwell, 59 Barb. 497. The last case cited is, in principle, like the one before us. The action was by a washerwoman in the employ of the tenant, against the landlord, and the court held that where there is no fraud, false representations, or deceit; and, in the absence of an express warranty or covenant to repair,...

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    ...a duty is owed and, if breached, liability is imposed. Harvey v. Seale, 362 S.W.2d 310, 312 (Tex.1962); Perez v. Reybaud, 76 Tex. 191, 13 S.W. 177, 7 L.R.A. 620 (1890).8 This obligation was imposed upon Cohen by the terms of the lease he had entered into with the United States.9 It The Less......
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    • November 14, 1946
    ...Glenn v. Hill, 210 Mo. 291, 109 S.W. 27, 16 L.R.A.,N.S., 699; Silverman v. Isaac, 183 App.Div. 542, 170 N.Y.S. 290; Perez v. Rabaud, 76 Tex. 191, 13 S.W. 177, 7 L.R.A. 620; Miller v. Vance Lumber Co., 167 Wash. 348, 9 P.2d 351. 3Stevens v. Yale, 101 Conn. 683, 127 A. 283, Edelman v. Monouyd......
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    ...Tex.Com.App., 235 S.W. 541. That the rule imposing liability is recognized as the law of this state, see also Perez v. Raybaud, 76 Tex. 191, 13 S.W. 177, 7 L.R.A. 620; Jackson v. Amador, Tex.Civ.App.1934, 75 S.W.2d 892 (writ dism.); Morton v. Burton-Lingo Co., 136 Tex. 263, 150 S.W.2d In Pe......
  • Fraser v. Kruger
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • April 28, 1924
    ... ... (N.S.) 326, 24 Times L.R. 582, ... 14 Ann.Cas. 760; Lane v. Cox, 1 Q.B. (Eng.) 415, 66 ... L.J.Q.B. (N.S.) 193, 76 L.T. (N.S.) 135; Perez v ... Rabaud, 76 Tex. 191, 13 S.W. 177, 7 L.R.A. 620; notes ... L.R.A. 1916F, 1081, 1140 ... Where ... there is no agreement by the ... ...
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