Wilcox v. Hines

• Decision Date: 12 March 1898
• Parties: WILCOX v. HINES.
• Court: Tennessee Supreme Court

46 S.W. 297

100 Tenn. 538

WILCOX v. HINES.

Supreme Court of Tennessee.

March 12, 1898

Appeal from circuit court, Davidson county; J. W. Bonner, Judge.

Action by Lucy S. Hines against J. M. Wilcox. From a judgment for plaintiff, defendant appeals. Affirmed.

Vertrees & Vertrees, R. T. Smith, R. McP. Smith, and E. H. East, for appellant.

Hamilton Parks and E. A. Price, for appellee.

WILKES J.

This is an action by a tenant against a landlord for injuries received from the defective condition of leased premises. The case has been before the court heretofore, and an opinion was rendered, reported in 96 Tenn. 148, 33 S.W. 914, and in 96 Tenn. 328, 34 S.W. 420, which states quite fully the facts and contentions as then made. At the last trial of the cause in the court below, there was a verdict for plaintiff for $2,300; and, on motion for new trial, upon suggestion by the presiding judge $500 of this amount was remitted, and for the balance, $1,800, judgment was rendered; and defendant has appealed, and assigned errors.

It is insisted that the court erred in following the rule laid down in Hines v. Wilcox, 96 Tenn. 148, 33 S.W. 914, and Id., 96 Tenn. 328, 34 S.W. 420, and Stenberg v Same, 96 Tenn. 163, 33 S.W. 917, and Id., 96 Tenn. 328 34 S.W. 420, as to the relative duties and liabilities of the landlord and tenant in regard to dangerous premises; and it is earnestly insisted these cases are not a correct exposition of the law. The contention, in brief, is that in the cases referred to this court laid down a rule not supported by authority, devolving a duty of active diligence upon the landlord to know the condition of his property when he leases it, as to its safety; and it is insisted the true rule in ordinary cases of rental is caveat emptor, and the duty of examining the premises is upon the tenant, and, in the absence of fraud or warranty of condition by the landlord, the tenant takes the property at his own risk. It is insisted that this has been the rule recognized and followed in this state up to the cases of Hines v. Wilcox and Stenberg v. Same, supra, and that the court since the 96 Tenn., 33 S.W. and 34 S.W. case, has returned to and reaffirmed this rule, in the case of Schmalzreid v White, 97 Tenn. 39, 36 S.W. 393. In regard to the latter case, it is only necessary to say that, in it, it is expressly stated that what was therein said was not intended to conflict with the case of Hines v. Wilcox, and that case was distinguished from the Hines v. Wilcox case. In the case in 97 Tenn. 39, 36 S.W. 393, the court held that the trial judge erred in holding the landlord liable, though he may have been ignorant of any defects and conditions without fault or negligence on his part, thus making the landlord an insurer of the condition of his premises. In the Hines v Wilcox case the landlord was not held to such strict liability, but only held liable for what he knew, or might have known by the exercise of reasonable care and diligence, and then only when the tenant failed to ascertain such facts by the exercise of reasonable care and diligence on his part. There is no conflict in the two cases, so far as the real questions presented are involved. Prior to the case of Hines v. Wilcox, there are in Tennessee only three cases in which the question of the liability of the landlord to the tenant, under conditions somewhat similar to the present, are considered. The first is the case of Banks v. White, 1 Sneed, 613. In that case the leased premises became untenantable during the pendency of the lease, caused by the acts of the city authorities in opening new streets, and not by any act of the landlord, or any defect in the premises themselves when they were leased; and the court held that the law does not imply any warranty as to the continuing condition of the property demised,--a rule laid down in all the cases, and questioned in none, but one wholly different from the principle involved in the present case, which relates to the condition of the premises when leased, and not to any subsequent charges, contingencies, or conditions during the lease. Another case is that of Oil Works v. Bickford, 14 Lea, 659. That was a case of a suit by a landlord against a tenant for improperly using and abusing the premises during the continuance of the lease, whereby the houses were broken down. It did not involve the liability of the landlord to the tenant, arising out of the dangerous or defective condition of the premises when they were leased, in any way. In Young v. Bransford, 12 Lea, 244, in treating of liability to the public for the condition of the premises, it is stated that it is the duty of the tenant or occupier to keep the premises in repair, so far as to make them safe to the public. This, it will be seen, also relates to the continuing condition of the premises pending the lease. The same case adds, "The landlord is liable when he covenants to keep the premises in repair, or when the defect exists at the time of the lease; citing 1 Thomp. Neg. 317; Whart. Neg. 817. This is the only case in our state, up to that time, prescribing the rule of liability between the landlord and tenant at the time the lease is made; and it holds the landlord liable for defects and dangerous conditions existing at that time. We are also cited to the case of Doyle v. Railroad Co., as being a case elaborated with great research and ability. 147 U.S. 413, 13 S.Ct. 333. In that case a railroad had let to a party a house, which during the continuance of the lease was overwhelmed with a snowslide. There was no defect in the premises when let. The snowslide was the act of God, occurring afterwards, and the landlord was in no way responsible therefor. The premises were safe when leased. So that this was also a case of continuing condition, and the landlord was not held liable. The case of Viterbo v. Friedlander, 120 U.S. 712, 7 S.Ct. 962, is also referred to; but that was a Louisiana case, in which the rules of the civil law were applied, and the doctrine of the common law was only incidentally mentioned, and not at all involved in the decision of the case, and not commented on or explained. In the case of Bowe v. Hunking, 135 Mass. 380, it was laid down as a rule that, if there was a duty devolving on the landlord to inform the tenant of a defect in the premises, there would be no distinction, as a ground of liability, between an intentional and an unintentional neglect to perform it, and there could be no such duty without knowledge of the defect; but this is evidently opposed to the great weight of authority, which discriminates between the intentional and unintentional neglect to perform a duty,--the former being a fraud or tort, and the latter not. In this case it appears that a step in a stairway had been sawn out, and the landlord knew it, and tested it, and deemed it safe; but the tenant, it seems, did not know it, though he had some opportunity to ascertain it; and it was held that he could not recover because of an injury from it. This is an extreme case, which does not commend itself, by its facts or reasoning, to general approval. The defect was one which no tenant would expect, or be on the lookout for; and, while known to the landlord, it was not called to the tenant's attention, and was clearly a trap which the tenant did not see, and could not anticipate, or discover with any reasonable care. The case of Edwards v. Railroad Co., 98 N.Y. 245, is also referred to with approval, and from it is cited an extract as follows: "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." This evidently has reference alone to the liabilities arising out of the contractual relation between the landlord and tenant. The same case, on page 249, recognizes a distinct ground of liability, resting upon the delictum of the landlord, and not on contract. It says: "If he [the landlord] demises premises, knowing that they are dangerous and unfit for the use for which they are hired, and fails to disclose their condition, he is guilty of negligence, which will in many cases impose responsibility upon him." And again (same page): "The responsibility of the landlord is the same in all cases. If guilty of negligence or other delictum which leads directly to the accident and wrong complained of, he is liable. If not so guilty, no liability attaches to him. If he lets a building for a warehouse, knowing that it is so weak and imperfectly constructed that the floors will break down from the weight necessary to be placed upon them, his negligence imposes liability upon him for injury to the person or property of any one who may be lawfully upon the premises using them for the purposes for which they were demised." The case of Jaffe v. Harteau, 15 Am. Rep. 438, is also cited, and in that case it is held, without any mature consideration, that in the absence of fraud or warranty the landlord is not liable for the present or future condition of

leased premises; but the case evidently considers only the liabilities arising out of the contractual relation of the parties, and does not refer to such liabilities as arise out of the delictum of the landlord. And the same may be said of Keates v. Cadogan, 10 C. B. 591, and Robbins v Jones, 15 C. B. (N. S.) 240, referred to, which simply state the rights arising out of the contractual relation, and do not consider the matter from the standpoint of delictum on the part of the landlord. But in the case of Jaffe v. Harteau the court is evidently influenced, if not controlled, by the fact that the defendant did not know, or have any...