Stenberg v. Wilcox

• Decision Date: 31 January 1896
• Citation: 33 S.W. 917,96 Tenn. 163
• Parties: STENBERG et ux. v. WILCOX.
• Court: Tennessee Supreme Court

33 S.W. 917

96 Tenn. 163

STENBERG et ux. v. WILCOX.

Supreme Court of Tennessee.

January 31, 1896

Appeal from circuit court, Davidson county; Claude Waller, Judge.

Action by Morris B. Stenberg and wife against James M. Wilcox, Jr. Judgment for defendant. Plaintiffs appeal. Reversed.

E. A Price, J. W. Gaines, and H. Parks, for appellants.

R. McP. Smith, for appellee.

WILKES J.

The facts in this case, and the result of the trial in the court below, are the same, substantially, as in the case of Hines v. Wilcox, 33 S.W. 914, except that the plaintiff Mrs. Stenberg was a boarder in the house which Mrs Hines occupied as a tenant of defendant, Wilcox. She was injured at the same time and by the same accident as that which resulted in the injury to Mrs. Hines. The plaintiff have appealed, and assigned errors. The same errors are assigned as in the Hines Case, and others specially applicable to this, and not to that, case.

We need not go over the ground already occupied in that case, but merely content ourselves with saying that, if plaintiffs can recover at all in this case, it must be upon the ground that the landlord leased premises in a dangerous and unsafe condition, when he knew, or might, by the exercise of reasonable diligence and care, have known, of such unsafe condition, and upon the further ground that plaintiffs did not know of such unsafe condition, and could not have known of it by the exercise of reasonable diligence and care, and not upon any contract between the defendant and Mrs. Hines of which Mrs. Stenberg may have known nothing, and to which she was not a party.

The court charged the jury that: "If an owner of a building leases it while it is in a dangerous condition, he is liable to persons injured on account thereof, provided such persons stand upon their rights strictly as third persons. For illustration, if a house be rented where the wall fronting on a street is in a decayed and defective condition, and during the time of the lease it falls upon a passer-by in the street, then the owner is liable for injuries so sustained. But those who claim upon the ground that they were invited into a dangerous place must seek their remedy against the party extending the invitation. If they are guests of the tenant, or boarders of the tenant, then the tenant, not the owner, must be held liable for injuries to such persons, even though the defects existed when the lease was made. The reason of this is [continues the learned judge] that such persons would never have suffered injury from the defects, if they had not entered the premises, and such entry was not made at either the request or invitation of the owner, but upon the invitation of the tenant, who holds herself out to the public as a keeper of a boarding or lodging house." The language is substantially the same as in Shearman & Redfield on Negligence (section 711), but the same authors say, "If the landlord lets the premises for a purpose which he knows (or ought to know) it to be unfit for, knowing that strangers will be invited there, it has been held that he is liable to them." And the same authors say (section 709), "Even the entire surrender of control by the landlord does not relieve him from liability to third persons for defects which existed in the premises when he parted with the control,-not even if the tenant has agreed to make repairs," etc. It clearly appears by the proof in this case that the defendant knew the premises were to be used as a boarding house, recommended it for this purpose, and urged its location, near the Union Depot, as a desirable feature for this purpose. The court also charged: "It is admitted in this case that the plaintiffs were boarders with the tenant, when injured; and, in consequence, there is no liability to them, upon the part of defendant, upon the ground that he rented premises while in a dangerous and defective condition. So, as to that theory of the case, you will not inquire, but will find for the defendant." These charges are assigned as errors, among others. Upon the legal questions raised by these assignments, the able counsel have furnished elaborate arguments, and have cited many authorities.

In the case of Swords v. Edgar, 59 N.Y. 28, the owners, and not the lessee, of a pier used in unloading vessels, were held liable for injuries sustained by a longshoreman by reason of defects which existed at the time of the lease. The court held that the plaintiff, being in the employ of the vessel, was there by invitation, and was entitled to the protection which would result from having the pier in an ordinary state of strength and security. In Albert v State, 66 Md. 325, 7 A. 697, plaintiff's parents were drowned by reason of the defectiveness of a wharf in the occupation of defendant's tenant. The jury were charged that if they found "that the defendant was the owner of the wharf, and that he rented it out to the tenant, and that at the time of the renting the wharf was unsafe, and the defendant knew, or by the exercise of reasonable diligence could have known, of its unsafe condition, and the accident happened in consequence of such condition, then the plaintiff was entitled to recover." Approved on appeal as correct. In Godley v. Hagerty, 20 Pa. St. 387 (approved in Carson v. Godley, 26 Pa. St. 111), it was held that where the owner of real estate erected thereon a row of buildings, with the intention of renting them to the government as a bonded warehouse, and with the knowledge that they would be obliged to stand very great weight, he was liable in damages for an injury to a person employed in one of the storehouses, occasioned by its fall, after having been so rented, though the immediate cause of the accident was the storage of heavy merchandise in the upper story; it appearing that the building had been constructed on defective plans, and of insufficient strength. See, also, cases collected and digested in Ray, Neg. Imp. Dut. (Pers.) pp. 48-53. In Waggoner v. Jermaine, 3 Denio, 306, it was held that the seller of premises upon which a nuisance existed at the time of sale was liable on the ground that the nuisance existed when the conveyance was made; and the same principle is recognized in Saltonstall v. Banker, 8 Gray, 195, where the court said that if the nuisance existed at the time of the lease the landlord would be liable. And in Durant v. Palmer, 29 N. J. Law, 545, the landlord was held liable for a nuisance arising from the structure of the building. Camp v. Wood 76 N.Y. 92, was a case where defendant owned an inn or boarding house. In the third story was a hall, which he rented out to certain parties, who used it for the purpose of giving a dance. Plaintiff bought a ticket, and attended the ball. He left about 11 o'clock at night, somewhat under the influence of liquor, and instead of going to the ground floor, leading to the street, he walked out through an open door onto the top of a piazza, which had no railing around it, and from there stepped off to the ground. Held,...