Timmons v. Williams Wood Products Corp.

• Decision Date: 27 January 1932
• Docket Number: 13335.
• Citation: 162 S.E. 329,164 S.C. 361
• Parties: TIMMONS v. WILLIAMS WOOD PRODUCTS CORPORATION et al.
• Court: South Carolina Supreme Court

162 S.E. 329

164 S.C. 361

TIMMONS v. WILLIAMS WOOD PRODUCTS CORPORATION et al.

No. 13335.

Supreme Court of South Carolina

January 27, 1932

Appeal from Common Pleas Circuit Court of Sumter County; T. S Sease, Judge.

Action by Florence V. Timmons, by R. D. Timmons, her guardian ad litem, against the Williams Wood Products Corporation and another. From order dismissing complaint on demurrer plaintiff appeals.

Affirmed.

L. D Jennings, of Sumter, for appellant.

M. M Weinberg and Thos. H. Brice, both of Sumter, for respondents.

J. HENRY JOHNSON, Circuit Judge.

Action for personal injuries sustained by appellant, an infant of tender years, from the falling of a door in the home of her father, which had been rented for himself and family from respondents. Demurrer by the latter for insufficiency sustained by the trial court in a formal order dismissing the complaint; appeal by plaintiff.

The material facts alleged, and, for the purposes of appeal, admitted by the demurrer, are substantially these: Defendants are a domestic corporation and its general manager, the latter of whom was charged with the duty of keeping in repair the demised premises occupied by plaintiff as a member of the tenant's family; plaintiff is an infant under the age of seven years, and resides with her father, R. D. Timmons, who for himself and family, leased from respondents a residence in Sumter county, which, it was agreed, at the time of the letting, respondents were to keep in repair at all times during the tenancy; prior to plaintiff's injury, respondents were notified by the lessee that the hinges on one of the doors of the house were in a defective condition, and that, unless repaired at once, such door was apt to fall and cause injury, whereupon they agreed to repair the same immediately; ample time for the correction of such condition elapsed, but there was a failure to remedy; again respondents were notified that the hinges were loose, again they promised to repair, again they neglected to undertake to correct the evil, and finally the door fell, striking one of plaintiff's feet and completely severing therefrom the large toe; plaintiff was permanently injured and disfigured--allegedly as a consequence of respondents' negligent and willful failure, after notice, to repair in accordance with their contract so to do.

Respondents thus enumerate the issues here raised:

(1) Does the complaint show any breach of legal duty owed appellant?

(a) Is there any consideration stated for the alleged covenant?

(b) Is a landlord liable in damages for a breach of covenant to repair to a stranger thereto?

(2) Are the damages alleged such as can be recovered in an action for a breach of a covenant to repair?

(3) Is the breach of the alleged covenant to repair the proximate cause of the injury alleged in the complaint?

More concisely stated, the inquiry is whether or not, under applicable principles of law, subject to that liberal construction accorded to pleadings since the adoption of the Code, the complaint states a cause of action; if so, whether the same be on contract or in tort; and, if the former, whether or not damages for personal injuries are properly recoverable therein.

Certainly it is well settled in this jurisdiction, as elsewhere, that, in the absence of a valid contract on the part of the lessor so to do, there is no obligation on his part to keep the demised premises in repair. City Council v. Moorehead, 2 Rich. Law, 430; Cantrell v. Fowler, 32 S.C. 589, 10 S.E. 934; Williams v. Salmond, 79 S.C. 459, 61 S.E. 79; Mallard v. Duke, 131 S.C. 175, 126 S.E. 525; 36 C.J. 125, § 766. This can mean nothing less than that the relationship of landlord and tenant imposes no legal duty upon the former to repair. "The lessor turns over the property, and the lessee takes it as it is turned over to him. Any obligation to put the property in repair *** must be imposed by some contract apart from the mere lease of the land for a given term." Williams Case, supra.

Likewise, it must be conceded, as a necessary corollary, that "a landlord who, without covenanting to repair, and without knowledge of latent defects, puts a tenant into full possession and control of demised premises, not intended for public purposes, and which are free from defects of construction constituting a nuisance, will not be liable for personal injuries sustained on the demised premises, by reason of the defective condition thereof, by the tenant, members of his family, employees, guests or invitees, or others entering upon the premises under the tenant's title." 36 C.J. 204, § 874, and numerous authorities there cited.

And it cannot be denied that, although the learned circuit judge assigned no reasons for sustaining the demurrer below, the overwhelming weight of authority elsewhere supports his ruling, it being most frequently held that ""parties to a tenancy may agree that the landlord shall make necessary repairs and thus vary the rights and obligations imposed by law from the relation, but an agreement to repair as a part of the letting is an agreement to make repairs on notice, and failure to comply will, as a general rule, give rise merely to a right of action for breach of contract, under which damages are not recoverable for personal injuries sustained by reason of the defective condition of the premises"--either by the tenant, or by a member of his family. 36 C.J. 208, § 881; Jacobson v. Leaventhal, 128 Me. 424, 148 A. 281, 68 A. L. R. 1192, annotation at 1195, 1203, 1204; Collison v. Curtner, 141 Ark. 122, 216 S.W. 1059, 8 A. L. R. 760, annotation at 766, 774, 779; Dice v. Zweigart, 161 Ky. 646, 171 S.W. 195, L. R. A, 1916F, 1155, annotation at 1159; Thomas v. Lane, 221 Mass. 447, 109 N.E. 363, L. R. A. 1916F, 1077, annotation at 1081; annotations at L. R. A. 1916D, 1227; 48 L. R. A. (N. S.) 919; 34 L. R. A. (N. S.) 804; 11 L. R. A. (N. S.) 504.

The rationale of the majority rule proceeds upon the premise that the relationship of landlord and tenant, of itself alone, imposes no duty upon the former to repair, which is in accord with the principle announced in our own cases, Cantrell v. Fowler, Williams v. Salmond, Mallard v. Duke, all supra; that, in the absence of a contract to repair, the tenant takes leased premises for better or for worse, with no positive, legal duty on the part of the lessor to make repairs; that such an obligation or duty "must be, imposed by some contract apart from the mere lease of the land for a given term," as held in Williams' Case, supra; that, since such duty arises solely by virtue of a particular covenant in a contract of letting, the breach thereof gives rise merely to an action ex contractu, wherein such damages only are recoverable as are ordinarily incident to any other breach of contract, to those which reasonably may be said to have been within the contemplation of the parties when the contract of letting was made, and that damages for personal injuries are merely consequential and too remote, reasonably to have been within contemplation of the contracting parties; that the duty to repair in such cases, being wholly contractual, imposes no greater or different liability upon a landlord than is imposed upon a carpenter, contractor, plumber, or other mechanic who may contract with a tenant, or with the owner of a home, to make needed repairs, and who fails to perform his contractual duty; that, where premises are demised solely for private purposes, as for a residence, and the tenant is put in exclusive possession and control thereof, he thereby acquires, for a specified term, or at will, an interest in real property, agreeable to the common-law rule that a lease is a conveyance of an estate or an interest in real property, or a transfer of the right to the possession and enjoyment of real property for the period fixed by the lease--the demised premises become, for the time being, the property of the tenant, who may admit, or deny entrance to, whomsoever he pleases; that an action ex delicto will not lie for the breach of a mere contractual duty to repair because a "tort is a civil wrong other than a breach of contract"; that "actional negligence" is the neglect to perform a legal duty, as distinguished from the failure to perform a mere contractual duty; and that, so far as members of the tenant's family are concerned, their rights are necessarily measured by those of the tenant.

The soundness of the refusal to permit recovery for personal injuries under such circumstances is fortified, it would seem, by reason of the fact that, if the premises become dangerous to life or limb, the tenant, rather than expose himself and the members of his household to such dangers, may, upon failure of the lessor to perform his engagement to repair, (1) rescind the contract and abandon the premises; (2) make the repairs himself and deduct the expense thereof from the rent, or recover the same upon a counterclaim in an action for rent (Cantrell v. Fowler, supra); (3) occupy without repair, and recoup such damages as are ordinarily incident to a breach of contract by counterclaim in the landlord's action for rent, as was done in Cantrell's Case; or (4) sue for damages for breach of contract. Jordan v. Miller, 179 N.C. 73, 101 S.E. 550; Cromwell v. Allen, 151 Ill.App. 404.

Our own cases throw but little light upon the precise issue under investigation. The nearest in point is that of Parnell v Saxe-Gotha Mills, 109 S.C. 369, 96 S.E. 187, wherein the tenant's wife sought to recover for personal injuries allegedly suffered as a result of the landlord's breach of contract to furnish tenant with "the necessary material and appliances" wherewith the latter was "to place said house in a safe and habitable condition." A demurrer to...