Morris B. STENBERG and Wife, Appts., I Messrs. J. W. Gaines, Hamilton Parks,

and Edwin A. Price, for appellants: James M. WILLCOX, Jr.

The court failed correctly to state to the jury

the law applicable to the case, or to correctly (96 Tenn. 163.)

declare the law governing the liability of the

landlord, as developed by the proof, or the liaA landlord is liable to a boarder on

bility of the former for injuries received by the premises leased for a boarding house

plaintiff. for injuries sustained by reason of the unsafe

Peil v. Reinhart, 127 N. Y. 381, 12 L. R. A. and dangerous

condition of the premises, which 843, and note. was known to, or might by the exercise of reason.

It is the duty of the landlord, when he leases able care and diligence have been known to, the property, to disclose to the tenant the true conlandlord at the time of the lease, but not to the dition of the same, and to make known to the boarder.

tenants such defects as he knows to exist, or

which he could know by reasonable diligence; (January 31, 1896.)

and if he fails to do so he is liable to the ten

ant and third persons for injuries sustained by the Circuit for Davidson . favor of defendant:in an action brought to re- Coke v. Gutkese, 80 Ky. 598, 44 Am. Rep. cover damages for personal injuries alleged to 499; Cesar v. Karutz, 60 N. Y. 229, 19 Am. have been caused by defendant's negligence. Rep. 164; French v. Vining, 102 Mass. 132, 3 Reversed.

Am. Rep. 440; Edwards v. New York & U. R. The facts are stated in the opinion, and in Co. 98 N. Y. 249, 50 Am. Rep. 659; Godley the opinions to the case of Hines v. Willcox, v. Hagerty, 20 Pa. 387, 59 Am. Dec. 731; Carpost. --.

8on v. Godley, 26 Pa. 111, 67 Am. Dec. 404.

A PRE Circoby plaintiff or from a judgment of reason of the dangerous or unsafe condition of

thereon for injuries caused by the defect. Swords the third story of a building, which is reached by v. Edgar, 59 N. Y. 28, 17 Am. Rep. 295.

two flights of steps with doors similarly arranged Where the owner of a wharf leased it to a tenant, , at the bottom of each, one opening on the street and at the time of the lease it was in an unsafe con- and the other on an unguarded piazza roof, will be dition, and the owner then knew or could by rea- liable to a person who attends the entertainment sonable diligence have known of such condition, and in attempting to leave mistakes the doors and he will be liable to one lawfully thereon for inju- goes out upon the roof, from which he falls and is ries received by reason of such unsafe condition. injured. Camp v. Wood, 76 N.Y. 92, 32 Am.Rep. 282. Albert v. State, Ryan, 66 Md. 325, 59 Am. Rep. 159. But in another case it was held that the owner of

The lessor of a wharf is not liable for injuries to property who lets it for a public exhibition, the an employee of the lessee caused by defects in the lessee to make any and all alterations necessary, is wharf, unless it is shown that he knew or with rea- not liable for injuries caused by the fall of a galsonable care might have known of the existence lery which was built for a limited number of peoof the defect when the wharf was leased. State, ple but wbich the lessee uses for the accommodaBasbe, v. Boyce, 73 Md. 469.

tion of all which it will hold, if there is nothing to But even in these cases the rule governing other show that the lessor knew that the gallery was not cases of the general class bas sometimes been ap- sufficient for the uses to which it was likely to be plied.

placed, or that it would be used in a way which Thus, a legsee of a pier, who bas covenanted with would endanger its security. Edwards v. New the owner to repair and has sublet without any | York & H. R. Co. 98 N. Y. 245, 50 Am. Rep. 659, Af. covenant with the subtenant to repair is not lia- firming 25 Hun, 634. ble to a person rightfully on the pier for injuries And the principle of that case was followed in caused by a defect in the pier which arises after Bard v. New York & H. R. Co. 10 Daly, 520. the lease was made. Clancy v. Byrne, 56 N. Y. 129, 15 Am. Rep. 391.

Liability of reversioner. In Stratton v. Staples, 59 Me. 94, where plaintiff In Gandy v. Jubber, 5 Best & S. 78, 33 L. J. Q. B. was injured by falling into an unguarded rollway N. S. 151, 10 Jur. N. 8. 652, 9 L. T. N. S. 800, 12 Week. communicating with the basement while going Rep. 526, the plaintiff was injured upon turning into a rented store for the purpose of finding the away from speaking to the tenant who stood in owner of tbe building, the owner was held liable the doorway of her house, hy falling through a for the injury.

grated covering over an opening adjoining the A person who builds stores several feet from the footpath of the highway. The court discusses the sidewalk, and connects them with the walk by a question of the liability of a reversioner who reparement leaving an unguarded opening to ad- ceived the title while the tenant was in possession, mit light to the basement in front of the sbow win- but the discussion goes upon the general question dow of one store, and leases the store in that con- of liability, and the fact that plaintiff might have dition, will be liable to a person who upon going been considered the tenant's guest is not noticed. to look at articles in the window falls into the open. The court of Queen's bench decided in favor of ing and is injured. Tomle v. Hampton, 129 III. 383. the plaintiff, but the exchequer chamber (5 Best &

The owner of a building, who has leased it for S. 485, 13 Week, Rep. 1022) recommended the plaina public entertainment with an understanding that, tiff to accept a stet processus, which was accordhe sball have control of all receipts at the box of- ingly done. fice until a certain sum iş realized, is liable to a per- Persons who acquire title by descent to a pier son injured by the fall of the front platform upon during the period of an outstanding lease are not which he was standing waiting for the doors to liable for defects in the property, although they open. Oxford v. Leathe, 165 Mass. 254.

existed when the lease was made. Ahern v. Steele, A person who lets a hall for an entertainment in 115 N. Y. 203, 5 L. R. A. 449, Reversing 48 Hun, 517. It was not necessary to show that the land. While there is no implied warranty of safety lord bad actual knowledge of the defect com by the lessor of private buildings, there is in plained of. His duty was due care, and ig- the lease of buildings meant to be used for norance was no defense.

public exhibitions; the lessor holding out here Gillv. Middleton, 105 Mass. 477, 7 Am. Rep. to the public that the structure is safe for its 548; Readman v. Conway, 126 Mass. 374; purpose, and being bound to use all reasonable Looney v. McLean, 129 Mass. 33, 37 Am. Rep. precautions to protect those who attend from 295; Watkins v. Goodall, 138 Mass. 533; Lind- all known imperfections. sey v. Leighton, 150 Mass. 285.

Ruger, Ch. J., in Edwards v. New York & The house was rented for quasi-public pur- H. R. Co. 98 N. Y. 260, 50 Am. Rep. 659; poses, and for the use of all boarders, patrons, Swords v. Edgar, 59 N. Y. 33, 17 Am. Rep. or lodgers who migbt patronize the tenant, and 295. such persons while on the premises were there The cases at bar belong to class 2. as of right and in accordance with the contem- The landlord is liable to strangers, third perplated use of the property at the time of the sons—the public for injuries from a puisance renting.

which he has leased. This rule does not beThe learned trial judge gave the law to the long to the law of landlord and tenant. jury in direct conflict with the well and thor- Penruddock's Case, 5 Coke, 1006; Ahern v. oughly established doctrine of both the Ameri- Steele, 115 N. Y. 203, 5 L. R. A. 449; Gandy can and English courts.

V. Jubber, 5 Best & S. 78; Roserell v. Prior, 2 Swords v. Edgar, 58 N. Y. 28, 17 Am. Rep. Salk. 460; Todd v. Flight, 9 C. B. N. S. 377; 295; Albert v. Štate, Ryan, 66 Md. 325, 59 Am. Swords v. Edgar, 59 N. Y. 28, 17 Am. Rep. Rep. 159; Godley v. Hagerty, and Carson v. 295; Godley v. Hagerty, 20 Pa. 387, 59 Am. Godley, supra; Ray, Negligence of Imposed Dec. _731; Carson v. Godley, 26 Pa. 111, 67 Duties, Personal, pp. 40, 48-53; Coke v. Gut- Am. Dec. 404; Jessenjv. Sweigert, 66 Cal. 182; kese, and Gill v. Middleton, supra.

Albert v. State, Ryan, 66 Md. 325, 59 Am. Dec. Messrs. R. McPhail Smith and R. T. 159; Waggoner v. Jermaine, 3 Denio, 806, 45 Smith, for appellee:

Am. Dec. 474; Durant v. Palmer, 29 N. J. L. The responsibility of a landlord for the con- 544. dition of the premises is different in different Specimens of cases belonging to class 3, are:

Cesar v. Karutz, 60 N. Y. 229, 19 Am. Rep. 1. To strangers—third persons—the public 164, where the landlord concealed from the -synonymous terms.

tenant that the premises were infected with 2. To the tenant and those upon the prem- small pox; Minor v. Sharon, 112 Mass. 477, 27 ises by the tenant's license or invitation. Am. Rep. 122, a similar case, and Coke v. Gut.

3. In exceptional cases of fraudulent con- kese, 80 Ky. 598, 44 Am. Rep. 499, based on cealment or culpable negligence as to defects the landlord's actual knowledge of the defect not ascertainable by the tenant by ordinary of the premises and neglect to warn the tenant, care in examining the premises.

who could not, by ordinary care, ascertain the 4. Property public in character, such as rail- 1 given defect. roads, docks, wharves, piers, places of public In this class of cases, where the landlord has entertainment.

the knowledge of dangerous defects not ascer


Contributory negligence.

upon premises adjoining the leased property, and A guest of a tenant, who after dark attempts to keeps it so negligently that it escapes and destroys go along a passageway to the rear of the house the leased house, he will be liable for injuries to a without knowing what is there, while the building guest of the tenant who is at the time upon the is in a dilapidated condition, is guilty of such neg leased property. Detiance Water Co. v. Olinger ligence that he cannot recover from the owner if (Ohio) 32 L. R. A. 736. be is injured by falling down some steps which are In the rehearing opinion of STENBERG v. WILLout of repair. Kammerer v. Gallagher, 58 III. App. cox, which is reported with the case of Hines v. 561.

Willcox, post, -the court says the landlord's liabili. The owner of property upon the rear of which ty, leaving the contract of lease out of view, is the are leased buildings is not liable for injuries to same to the tenant as to his servant, or his guest, a visitor to one of the buildings who attempts to or bis customer, or his wife or child, or to tbe stran. reach it by going through an unfinished house ger passing along the streets or on the premises for upon the front of the lot, where he provided a way any legitimate purpose. The force of the clause through an adjoining lot and subsequently opened "leaving the contract of lease out of view" is not an alley along the front of the bouse, although the just apparent, but from the general tenor of the alley was temporarily closed at the time the visitor opinions it would seem that the court intends to attempted to go through the house. Roulston v. state that the liability of the landlord to his tenant Clark, 3 E. D. Smith, 366.

or the tenant's guest, in the absence of any express Portion of building in landlord's possession.

provision in the lease upon the question, is the same If the owner of the buildiog is himself using and

as his liability to a stranger passing along the exercising control over the portion of the building street. If that is the intention it is certainly not wbich is defective, he will be liable for injuries to supported by the autborities, as will be seen by refemployees of the lessee. Poor v. Sears, 154 Mass. erence to the citations in the present note and in the 539.

notes to Lee v. McLaughlin (Me.) 26 L, R. A. 197, and But the rule in that class of cases is entirely dis- Hines v. Willcox, post, There is a very marked tinct from that in those cases where the entire distinction between the liability of the landlord to premises are in possession of the tenant. The cases

the tenant or the person on the premises under the upon this subject are collected in a note to Jones v.

tenant's title and to the person passing along the Millsaps (Miss.) 23 L. R. A. 155.

street. See note upon liability for fall of building

or walls to Ryder v. Kinsey (Mion.) ante, 557. Dangerous agency on adjoining premises.

H. P. F. If the landlord collects a large body of water

tainable by the tenant, by ordinary care, and I tiff, Mrs. Stenberg, was a boarder in the house conceals or negligently omits to disclose them, which Mrs. Hines occupied as a tenant of be is liable to anybody who is injured by reason defendant, Willcox. She was injured at the of them.

same time and by the same accident as that Nugent v. Boston, C. & M. R. Co. 80 Me. which resulted in the injury to Mrs. Hines. 62; Swords v. Edgar, 59 N. Y. 28, 17 Am. Rep. The plaintiffs have appealed, and assigned 295; Edwards v. Nero York & H. R. Co. 98 N. errors. The same errors are assigned as in the Y, 260, 50 Am. Rep. 659,- -are instances of Hines Case, and others especially applicable to class 4.

this, and not to that, case. The transaction involved in this case was the We need not go over the ground already renting of an ordinary dwelling house the back occupied in that case, but merely content ourporch of which was defective, but this was selves with saying that, if plaintiffs can recover unknown to the landlord and his agents, at all in this case, it must be upon the ground thougb probably ascertainable by an examina- that the landlord leased premises in a dangertion with ordinary care. The inmates sworeous and unsafe condition, when he knew, or they had no idea it was dangerous, after liv. might, by the exercise of reasonable diligence ing there eleven months. Their next-door and care, have known, of such unsafe conneighbor swore that the porch could be seen dition, and upon the further ground that plainfrom an upper window to pull away from the tiffs did not know of such unsafe condition, house, and that she repeatedly warned them of and could not have known of it by the exerits condition.

cise of reasonable diligence and care, and not The case was not one of bidden defects upon any contract between the defendant and known to, and concealed by, tbe landlord. Mrs. Hines, of which Mrs. Stenberg may have

There is no implied covenant that the de- known nothing, and to which she was not a mised premises are fit for occupation, or for party. the particular use wbich the tenant means to The court charged the jury that “if an owner make of them.

of a building leases it while it is in a danger. 1 Tbomp. Neg. 323; 1 Taylor, Land. & T. ous condition, he is liable to persons injured 197, 294, 381; Wood, Land. & T. 855, pote; on account thereof, provided such persons Coren v. Sunderland, 145 Mass. 363; Jaffe v. stand upon their rights strictly as third perHarteau, 56 N. Y. 398, 15 Am. Rep. 438; sods. For illustration, if a house be rented Keates v. Earl Cadogan, 10 C. B. 591; Krueger where the wall fronting on a street is in a v. Ferrant, 29 Minn. 385, 43 Am. Rep. 223; decayed and defective condition, and during Mullen v. Rainear, 45 N. J. L, 520; Chadwick the time of the lease it falls upon a passer-by v. Woodward, 13 Abb. N. C. 441; Cleves v. in the street, then the owner is liable for Willoughby, ? Hill, 83; McGlashan v. Tall- injuries so sustained. But those who claim madge, 37 Barb. 313; Howard v. Doolittle, 3 upon the ground that they were invited into a Duer, 464; Dutton v. Gerrish, 9 Cush. 89, 59 dangerous place must seek their remedy against Am. Dec. 45; Banks v. White, 1 Sneed, 614; the party extending the invitation. If they Southern Oil Works v. Bickford, 14 Lea, 657; are guests of the tenant, or boarders of the Young v. Bransford, 12 Lea, 244; Pingrey, tepant, then the tenant, not the owner, must Real Prop. SS 592, 587; Shearm. & Redf. be held liable for injuries to such persons, Neg. $ 711; Ray, Negligence of Imposed even though the defects existed when the lease Duties, p. 61.

was made. The reason of this is [continues Upon the general duty of self-protection, see the learned judge) that such persons would Cooley, Torts, 2d ed. p. 570; Brown v. Leach, never bave suffered injury from the defects, if 107 Mass. 364.

they had not entered the premises, and such The boarder, being on the dangerous prem- entry was not made at either the request or ises by the tenant's invitation, and pot the land invitation of the owner, but upon the invitalord's, must look to the tenant alone for dam- tion of the tenant, who holds herself out to ages from their defects.

the public as a keeper of a boarding or lodg. Shearm. & Redf. Neg. $ 711; Tiedeman, ing house." The language is substantially the Real Prop. 2d ed. $ 189; Burdick v. Cheadle, same as in Shearman & Redfield on Negligence 26 Obio St. 393, 20 Am. Rep. 767.

($ 711), but the same authors say, in the same In Young v. Bransford, supra, it was held section: "If the landlord lets the place for a that where machinery defective through the purpose for which he knows, or ought to bailor's negligence was bailed, gratuitously or know, it to be unfit, knowing that strangers. for bire, and a third person was injured by the will be invited there, it has been held that he defect, the bailor was not liable to the injured is liable to them.”. And the same authors say party.

(S 709): "Even the entire surrender of conThe landlord owes no duty to the tenant's trol over land to a lessee does not relieve guest or boarder,

the owner from liability to third persons for Mellen v. Morrill, 126 Mass. 545, 30 Am. ) defects which existed in it when he parted Rep. 695.

with its control-not even if the tenant has Vamp v. Wood, 76 N. Y. 92, 32 Am. Rep. agreed to make repairs, etc. It clearly appears. 282, is not in point here.

by the proof in this case that the defendant

knew the premises were to be used as a boardWilkes, J., delivered the opinion of the ing house, recommended it for this purpose, court:

and urged its location, near the Union Depot, The facts in this case and the result of the as a desirable feature for this purpose. The trial in the court below, are the same, sub-court also charged: “It is admitted in this stantially, as in the case of Hines v. Willcox, 96 case that the plaintiffs were boarders with the Tepn. 148, post, -, except that the plaintenant when injured; and, in consequence, there is no liability to them, upon the part of open door on to the top of a piazza, which had defendant, upon the ground that he rented no railing around it, and from there stepped premises while in a dangerous and defective off to the ground. Held, that the landlord condition. So, as to that theory of the case, you was liable. In Jessen v. Sweigert, 66 Cal. 182, will not inquire, but will find for the defend it was held that the owner, and not the tenant ant.” These charges are assigned as errors, in possession, was liable for injury resulting among others. Upon the legal questions raised to a third person from the fall of an awning by these assignments, the able counsel have in front of the building. furnished elaborate arguments, and have cited It is the duty of the landlord, when he leases many authorities.

the property, to disclose to the tenant the true In the case of Swords v. Edgar, 59 N. Y. 28. condition of the same, and to point out and 17 Am. Rep. 295, the owners, and not the make known to the tenant such defects as he lessee, of a pier used in unloading vessels, knows to exist in the premises, or which were held liable for injuries sustained by a he could know by reasonable diligence; and if longshoreman by reason of defects which he fails to do so, and the tenant or person existed at the time of the lease. The court relying upon his representations is injured, the held that the plaintiff, being in the employ of landlord is responsible therefor. This printhe vessel, was there by invitation, and was ciple was settled in Coke v. Gutkese, 80 Ky. entitled to the protection which would result 598, 44 Am. Rep. 499. This was an action for from having the pier in an ordinary state damages resulting to appellant by reason of a of strength and security. In Albert v. State, defective privy floor, through which she fell Bryan, 66 Md. 325, 59 Am. Rep. 159, plaintiff's into the vault below and was injured. The parents were drowned by reason of the defect- petition alleged, in substance, that the father iveness of a wharf in the occupation of defend of the plaintiff had rented from the defendant ant's tenant. The jury were charged that if the premises on which the privy was situated, they found “that the defendant was the owner for one year, and at the time be rented the of the wharf, and that he rented it out to a defendant knew the timbers upholding the tenant, and that at the time of the renting the floor were unsafe, but did not disclose, but wharf was unsafe, and defendant knew, or by suppressed, his knowledge of its condition from the exercise of reasonable diligence could have the father; that neither she nor her fatber known, of its unsafe condition, and that the could discover the dangerous condition of the accident happened in consequence of such floor, by reason of the character of its concondition, the plaintiff was entitled to recov-struction; that she fell through the floor, and er.” Approved on appeal as correct. In was precipitated into the vault below, and was Godley v. Hagerty, 20 Pa. 387, 59 Am. Rep. greatly damaged physically and mentally by 731 (approved in Carson v. Godley, 26 Pa. 111, the fall, for which she prayed judgment for 67 Am. Dec. 404), it was held that where the $10,000 as damages. The court said that, owner of real estate erected thereon a row of “although the law presumes that it was her buildings, with the intention of renting them father's duty to repair the premises in the to the government as a bonded warehouse, and absence of an agreement otherwise, still we with the knowledge that they would be obliged are of the opinion that if the appellee rented to stand very great weight, he was liable in the premises knowing that the privy was in damages for an injury to a person employed the condition alleged, it was his duty to disin one of the storehouses, occasioned by its fall, close his knowledge, because it was a portion after having been so rented, though the imme- of the premises which he knew, as all men diate cause of the accident was the storage know, would be in daily use by his tenant and of beavy merchandise in the upper story; it family, and, unless apprised of the hidden appearing that the building bad been con- danger, they would inevitably be injured, and structed on defective plans, and of insufficient the younger and more helpless perhaps lose strength. See also cases collected and digested their lives. And if, as alleged, he failed to dis. in Ray, Negligence of Imposed Duties, Per- close bis knowledge, but nevertheless rented sonal, pp. 48–53. In Waggoner v. Jermaine, 3 the dangerous tenement to the plaintiff's father, Denio, 306, 45 Am. Dec. 474, it was held that with whom she lived, he is responsible for the seller of premises upon which a nuisance the injury sbe received.” To the same effect, existed at the time of sale was liable on the see the holding of the New York court in ground that the nuisance existed when the con. Cesar v. Karutz, 60 N. Y. 229, 19 Am. Rep. veyance was made; and the same principle is 164, where the landlord knowingly rented recognized in Saitonstall v. Banker, 9 Gray, to the tenant premises infected by a con105, where the court said that if the nuisance tagious disease, without notifying the tenant existed at the time of the lease the landlord thereof. The landlord was held to be liable, would be liable. And in Durant v. Palmer, in a case where the disease was communicated, 29 N. J. L. 545, the landlord was held liable for the damages sustained. In Edwards v. for a nuisance arising from the structure of the New York & /. R. Co. 98 N. Y. 249, 50 Am. building. Camp v. Wood, 76 N. Y. 92, 32 Rep. 659, it was held that it is the duty of the Am. Rep. 282, was a case where defendant landlord to disclose to the prospective tenant owned an inn or boarding house. In the third any defective condition from which danger or story was a hall, which he rented out to cer- accident is likely to arise. The court says: tain parties, who used it for the purpose of "If he demises premises knowing that they are giving a dance. Plaintiff bought a ticket, and dangerous and unfit for the use for which they attended the bal). He left about 11 o'clock at are hired, and fails to disclose their condition, night, somewhat under the influence of liquor, he is guilty of negligence which will in many and instead of going to the ground floor, lead- cases impose responsibility upon him.. ing to the street, he walked out through an If guilty of negligence or other delictum which leads directly to the accident and wrong com- ises in a ruinous condition, or (3) when he has plained of, he is liable; if not so guilty, no lia-expressly licensed the tenant to do acts amountbility attaches to him. If he lets a building ing to a nuisance." Again, in Nugent v. Bosfor a warehouse, knowing that it is so weak ton, C. & M. R. Co. 80 Me. 62, 77, Virgin, J., and imperfectly constructed that the floors writing the opinion, said: "It is settled law will break down from the weight necessarily that when the owner lets premises which are to be placed upon them, his negligence im- in a condition which is unsafe for the avowed poses liability upon him for injury to the per- purpose for which they are let, or with a nuison or property of anyone who may lawfully sance upon them when let, and receives rent be upon the premises using them for the pur- therefor, he is liable, whether in or out of posposes for which they were demised. If one session, for the injuries which result from builds a house for public amusements or enter their state of insecurity, to persons lawfully tainments, and lets it for those purposes, know. upon them; for by the letting for profit he au. ing that it is so imperfectly and carelessly built thorizes a continuance of the condition they that it is liable to go to pieces in the ordinary were in when he let them, and is therefore use for which it was designed, he is liable to guilty of a nonfeasance.” Again, in the case the persons injured through his carelessness. of Gandy v. Jubber, 5 Best & s. 78, the owner And this rule of responsibility goes far enough of premises, attached to which was an area, for the protection of lessees and of the public let the same to a tenant from year to year, and generally.” In the case of Ahern v. Steele, 115 died, having devised the property (with an iron N. Y. 203, 5 L. R. A. 449, numerous cases are grating over the area, improperly constructed cited by Earl, J., holding that, if the landlord and out of repair, so as to amount to a nuilease premises with a nuisance on them, he will sance) to the defendant, who, having notice of .be responsible in damages. In support of the tbe nuisance, suffered the tenant to remain in position the learned judge cites the case of occupation of the premises upon the same Rosewell v. Prior, 2 Salk. 460, where a tenant terms as before, receiving the rent; and it was for years erected a nuisance, and afterwards held that he was liable for the damage caused made an underlease, and the question was by the nuisance, on the ground that he had wbether, after a recovery against the first ten relet the premises with the nuisance thereon. ant for years, for the erection, an action would Again, quoting from Wood, Land. & T. 2d lie against him for the continuance after he ed. p. 1279: "The landlord's right to posseshad made an underlease; and it was held that sion being suspended during the term, it folit would, "for he transferred it with the orig. lows that his liabilities in respect to the possesinal wrong, and his demise affirms the contin- sion are also suspended, except as to such uance of it.” Again, "in Todd v. Flight, 9 C. matters or defects in the premises as existed B. N. S. 377, it was held that an action lies when the premises were let, arising from the against the owner of premises who lets them to manner of use, or defective construction. If a tenant in a ruinous and dangerous condition, a puisance existed upon the premises at the and who causes or permits them to remain so time of the demise, the landlord as well as the until by reason of the want of reparation they tenant is liable for the damages resulting to fall upon and injure the house of an adjoining third persons therefrom, although it becomes a owner.” Again, in Nelson y. Liverpool Brev. I nuisance only by the act of the tenant in using ery Co. L. R. 2 C. P. Div. 311, it was held that it for ordinary purposes.". This we undera landlord is liable for an injury to a stranger stand to be the holding of this court in Young by the defective repair of demised premises v. Bransford, 12 Lea, 244, citing 1 Thomp. only when he has contracted with the tenant Neg. 317; Whart. Neg. $ 817. See also collato repair, or wben he has been guilty of mis- tion of authorities holding the same doctrine feasance, as, for instance, in letting the prem. in 12 Am. & Eng. Enc. Law, pp. 690, 691, and ises in a ruinous condition, in all other cases notes; Taylor, Land. & T. 8th ed. & 175; he is exempt from responsibility for accidents Shearm. & Redf. Neg. SS 175, 175a. happening to strangers during the tenancy.' We think there was error in the charge of Again, in Woodfall, Land. & T. 13th ed. 735, the learned trial judge, upon the liability of it is said: “As regards the liability of land- the landlord to plaintiff, under the facts of this lords to third persons, it may be taken as a case; and the judgment is reversed, and cause general rule that the tenant and not the land- remanded for a new trial. The appellee will lord is liable to third persons for any accident pay the costs of the appeal. or injury occasioned to them by the premises being in a dangerous condition, and the only A rehearing was denied in this case on exceptions to this rule appear to arise when March 5, 1896, and the opinion is printed in the landlord has either (1) contracted with the connection with the case of Hines v. Willcox, tenant to repair, or (2) when he lets the prem- | post, 34 L. R, A,

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