Schmalzreid v. White

• Decision Date: 13 June 1896
• Citation: 36 S.W. 393,97 Tenn. 36
• Parties: SCHMALZREID et al. v. WHITE.
• Court: Tennessee Supreme Court

36 S.W. 393

97 Tenn. 36

SCHMALZREID et al. v. WHITE.

Supreme Court of Tennessee.

June 13, 1896

Error to circuit court, Shelby county; L. H. Estes, Judge.

Action by C. R. White against Wilhelmina Schmalzreid and others. Plaintiff had judgment, and defendants bring error. Reversed.

Turley & Wright and Morgan & McFarland, for plaintiffs in error.

James M. Greer and C. D. M. Greer, for defendant in error.

BEARD J.

The plaintiffs in error were the owners of a four-story building in Memphis, which was burned in November, 1893. At that time the Young Men's Christian Association occupied the second and third floors, under a contract of subtenancy. The defendant in error was a member of the association, and, when the fire occurred, was on the second floor. In attempting to escape, he leaped to the ground, and was seriously injured. This suit was instituted by him against the owners of the property to recover damages for this injury. The gravamen of his declaration is that the building was negligently constructed, in that, contrary to law and the ordinances of the city, it was not provided with fire escapes, and that this neglect was the proximate cause of his injury. Upon issues properly made, there was a verdict and judgment for the plaintiff below. The case is before us upon assignments of error to the charge of the trial judge. Two of these will be noticed:

1. In his instructions to the jury, he said: "Under the common law, when a landlord leased or rented a house to a tenant he was bound to deal fairly with such tenant. He was required to disclose to the tenant any hidden defects in the construction of the building, or any secret conditions or surroundings that contributed to render the building unsafe to life, limb health, or property, so that if the landlord fails to make such disclosures as would apprise the tenant of the condition of the premises before he became his tenant, and the failure to make such disclosures caused the tenant, or some one there on his invitation, to be injured or suffer loss, then such act of the landlord was held to be fraudulent, and made him liable for whatever injury resulted." It will be seen that in this paragraph the circuit judge, in effect, tells the jury that the common law placed on the landlord the duty of disclosure to the tenant of hidden defects and secret conditions that contribute to make the demised property unsafe, and made him liable for any injuries resulting therefrom, not only to his tenant, but to any one on the premises by the invitation of his tenant, though the landlord was ignorant of these defects and conditions, without fault or negligence on his part. The common law imposes no such responsibility on the landlord. It does not make him an insurer to the tenant. On the contrary, in the ordinary contract of letting, it does not imply any warranty on the part of the landlord that the leased premises are in a safe and habitable condition, since the tenant ordinarily has it in his power to inspect the premises, and so accepts them at his own risk. Busw. Pers. Inj.§ 82. In Edwards v Railroad Co., 98 N.Y. 245, it is said, "It is a universal rule, to which no exception can be found in any case now regarded as authority, that upon the demise of real estate there is no implied warranty that the property is fit for occupation, or suitable for the use or purpose for which it is hired." In Jaffe v. Harteau, 56 N.Y. 398 it was held that "the lessor of buildings, in the absence of fraud, or any agreement to that effect, is not liable to the lessee, or others lawfully upon the premises for their condition, or that they are tenantable, and may be safely and conveniently used for the purpose for which they are apparently intended." In Francis v. Cockrell, L. R. 5 Q. B. 501, Kelly, C. B., said that there was no implied warranty by the lessor that the demised real estate "shall be reasonably fit, or fit at all, for the purpose for which it is let." And in Keates v. Cadogan, 10 C. B. 591, the rule is stated to be that "no action lies by a tenant against the landlord on account of the condition of the premises leased, in the absence of an express warranty, or active deceit." In Bowe v. Hunking, 135 Mass. 380, the court said: "In the case at bar there was no express or implied warranty, and no actual fraud or misrepresentation. If the action can be maintained, it must be on the ground that it was the duty of the defendants to inform the tenants of the defect in the staircase. This duty, if it exists, does not arise from the contract of the parties, but from the relation between them, and is imposed by law. If such a duty is imposed by law, it would seem that there is no distinction, as a ground of liability, between an intentional and unintentional neglect to perform it, but in such a case there can be no such duty without knowledge of the defect." The same doctrine is announced in Viterbo v. Friedlander, 120 U.S. 712, 7 S.Ct. 962, Doyle v. Railroad Co.,

147 U.S. 413, 13 S.Ct. 333; it is also recognized by this court in Banks v. White, 1 Sneed, 614, and Oil Works v. Bickford, 14 Lea, 657. In laying down, as the rule of the common law, one so widely different from that announced in the foregoing cases, the trial judge was guilty of manifest error, the effect of which was not cured in the subsequent part of his charge. What is here said in discussing this subject is not intended to conflict with the case of Hines v. Wilcox, 33 S.W. 914, 96 Tenn. 148. In that case it was announced that the landlord was liable, not only for what he knew of the defects in the premises let, but for what he might have known by the exercise of reasonable care and diligence, while in this, under the instructions of the trial judge, the rule, as announced by him, would make the landlord liable for hidden defects from which injuries were received, without regard to the question of diligence and reasonable care.

2. But the plaintiff below not only rested his right of recovery upon what he claimed was common-law negligence of the owners of the property destroyed, but also upon their violation of certain ordinances, as to fire escapes, of the city of Memphis, which were given in evidence. Independent of statute or ordinance, we do not...