Rich v. Swalm

• Decision Date: 26 October 1931
• Docket Number: 29486
• Citation: 161 Miss. 505,137 So. 325
• Court: Mississippi Supreme Court
• Parties: RICH v. SWALM

137 So. 325

161 Miss. 505

RICH v. SWALM

No. 29486

Supreme Court of Mississippi

October 26, 1931

Division B

1. LANDLORD AND TENANT.

Simple lease of dwelling or other private premises carries no obligation on landlord to repair, if there be no deceit or misrepresentation or equivalent thereof by landlord.

2. LANDLORD AND TENANT.

Lessee takes premises as he finds them, and must return them as nearly as possible in like condition.

3. LANDLORD AND TENANT.

Where landlord agrees to repair premises, his obligation is purely contractual, and his liability for nonperformance is one for breach of contract.

4. LANDLORD AND TENANT.

On landlord's breach of agreement to repair premises, tenant is entitled to damages naturally arising according to usual course of things or those which must have been contemplated as probable result of breach.

5. LANDLORD AND TENANT.

Personal injuries to tenant resulting from porch banisters giving way held too remote to be included in action for breach of landlord's covenant to generally repair.

6. LANDLORD AND TENANT.

To recover for personal injuries, tenant must show some act of negligence or misfeasance beyond mere breach of landlord's covenant to repair.

HON. E J. SIMMONS, Judge.

APPEAL from circuit court of Lincoln county HON. E. J. SIMMONS Judge.

Action by Mrs. R. Wilson Rich against F. S. Swalm. From a judgment for defendant, plaintiff appeals. Affirmed.

Affirmed.

J. N. Yawn and P. Z. & R. L. Jones, all of Brookhaven, for appellant.

In actions for personal injuries based on a, landlord's breach of covenant to repair, it has sometimes been said that damages for such injuries were not within the contemplation of the parties at the time of the making of the agreement or were too remote for recovery. However, in a jurisdiction accepting this doctrine, and holding that plaintiff can only recover such damages as may be reasonably and fairly considered as arising from the breach of the covenant or such as may reasonably be supposed to have been in the contemplation of the parties at the time they made the contract, it has been held that the boundaries of such damages as might be contemplated may be enlarged by the fact of notice, and that after notice the landlord may be liable for injuries arising. Where the circumstances were out of the ordinary as, where the landlord having notice of a defective condition agreed to make repairs as an inducement to the tenant remaining after threat on his part to vacate, it has been field that the injuries resulting from such defect were in the contemplation of the parties at the time of the agreement and that the landlord was liable therefor. Although in general the lessor's covenant to repair will not, support an action for a personal injury due to failure to make repairs, the rule will not apply where the very purpose of the promise was to safeguard against injury, and where in consequence an injury resulting from a failure to perform was in contemplation of the parties at the time the stipulation was given. So also, it has been held that, where particular repairs were agreed to by the landlord for the purpose of safeguarding the premises against the danger called to his attention, injuries resulting from his neglect to repair were in the contemplation of the parties.

36 C. J., P. 208.

The doctrine of assumption of risk is only applicable to cases between master and servant.

20 R. C. L., p. 109., sec. 95.

The general rule is firmly established that no implied covenant for repairs can be raised against the lessor. The lessee cannot invoke ail implied covenant of the landlord that the leased premises are fit and suitable for the lessee's business or use. The intending tenant must use his own faculties and judge for himself if the premises he desire to lease are in repair and are suitable for his use. If he wishes to protect himself against the hazards of subsequently accruing accidents or defects requiring repairs, he must do so by proper covenants in his contract of lease. He takes his leased premises for better or worse, as an ancient authority aptly characterizes his taking. A tenant has it in his power to impress responsibility upon the landlord for the making of repairs and if the landlord fails to make the repairs in pursuance to such an agreement, he will be liable to the tenant for the damages thereby caused.

Jones v. Millsaps, 14 So. 440, 441.

A promise by a landlord to repair to prevent vacation of the premises by the tenant is supported by a sufficient consideration and the landlord is liable for personal injuries received by reason of his failure to make the repairs.

Hart v. Coleman, 78 So. 201, L. R. A. 1948, 213.

Where the lessor by his lease contracts to keep the leased premises in repair and he negligently fails to do so, he is liable to the lessee and the members of the lessee's family occupying the same, for personal injuries received from a defective condition of the premises. The action is for the wrong committed by the landlord by his negligence in failing to perform an act assumed by him, which he should know would protect them from injury if performed, or expose them to injury if not performed. The contract creates an implied legal duty on the part of the landlord toward those who, are rightfully upon the premises and a negligent violation thereof vests in them a right of action in tort against him for injuries sustained.

Keegan v. Heileman Brewing Co., 152 Minn. 877, L. R. A. 1916 F. 1149.

It does not follow that where there is a, breach of contract there can never be a liability in tort, as expression in some of the earlier cases would seem to imply.

Where there is a general duty, even though it arises from the relation created by, or from the term of, the contract, find that duty is violated, either by negligent performance or negligent nonperformance, a landlord may be held as for a tort. Between landlord and tenant, as in other relations, there is always the general duty to so use one's own as not to injure another.

Fowler Cycle Works v. Fraser & Chalmers, 110 Ill.App. 126; Mesher v. Osborne, 134 P. 1092, 48, L. R. A. (N. S.) 917.

Circumstances indicating that personal injuries were within the contemplation of the parties making the contract, will create liability upon his part of the landlord for personal injuries resulting from his failure to repair as agreed.

Cromwell v. Allen, 151 Ill.App. 404.

A promise to repair a defect in the leased premises of a character so dangerous that it constituted a constant menace to the personal safety of the tenant, creates a duty on the part of the landlord the negligent breach of which constitutes a tort rendering him liable for personal injury to the tenant.

Graff v. W. J. Lemp Brewing Co., 145 Mo.App. 264, 129 S.W. 1005; Stillwell v. South Louisville Land Co., 58 S.W. 696.

Where a landlord after notice of a defect breached his contract to repair, he was liable for an injury to an employee of the tenant, injured through the defective condition of the premises.

Merchants C. P. & S. Co. v. Miller, 186 S.W. 87, L. R. A. 1916F, 1137.

The English rule on this question makes the test of the lessor's liability privity of contract.

Cavalier v. Pope, 5 Ann. Cas. 713.

The State of Georgia bas a statute upon this question and permits a recovery.

51 S.E. 579; 36 S.E. 615.

The State of Louisiana permitted it recovery in a case very similar to the one at bar.

Bouthe v. New Orleans Terminal Co., 72 So. 513.

There are numerous cases where the tenant was not permitted to recover for personal injuries, but an examination of these cases will show that each and every one of them was decided adversely to the tenant because of one of the following reasons. First: Either there was no express covenant to repair; or Second: There were no facts or circumstances surrounding the making of the contract, which would put the landlord upon notice or call his attention to the fact that the premises were in such condition that injuries to persons were likely to result, unless the premises were repaired--in other words, nothing to show that personal injuries were within the contemplation of the parties; or, Third: The tenant's right-of-action was barred by his contributory negligence.

Neither of these reasons can apply to the case at bar.

Brady, Dean & Hobbs, of Brookhaven, for appellee.

Where the action is for a breach of contract to repair, it is held that damages arising from personal injuries received through some defect of the premises which a landlord agreed to, but did not, repair, are only such as approximately result from the breach and were within the contemplation of the parties when the contract was entered into.

Case note to Dustin v. Curtis, 75 N.H. 266, 67 A. 220, 13 Ann. Cas. 169; 11 L. R. A. (N. S.) 504.

It has been held with but few exceptions that the breach by the landlord of his contract to repair the demised premises will not ordinarily entitle the tenant, his family, servants, or guests, personally injured from a defect therein, existing because of the negligence of the landlord in failing to comply with his agreement to repair, to recover indemnity for such an injury, whether in contract or tort, since damages are too remote, and cannot be said to be fairly within the contemplation of the parties. A contract to repair does not contemplate as damages for the failure to perform it that any liability for personal injuries shall grow out of the defective condition of the premises; because the duty of the tenant, if the landlord fails to perform his contract to repair, is to do the work himself and recover the cost in an action for that purpose, or upon a counterclaim in an action for rent, or if the premises are made...