A guest of a tenant, who after dark attempts to go along a passageway to the rear of the house without knowing what is there, while the building is in a dilapidated ecadition, is guilty of such neg-eased property. Detance Water Co. v. Ounger ligence that he cannot recover from the owner if he is injured by facing down some steps which are out of repair. Kammerer v. Gallagher. Se LL. App.

tainable by the tenant, by ordinary care, and | tiff, Mrs. Stenberg, was a boarder in the house conceals or negligently omits to disclose them, he is liable to anybody who is injured by reason of them.

Nugent v. Boston, C. & M. R. Co. 80 Me. 62; Swords v. Edgar, 59 N. Y. 28, 17 Am. Rep. 295; Edwards v. New York & H. R. Co. 98 N. Y. 260, 50 Am. Rep. 659,-are instances of class 4.

The transaction involved in this case was the renting of an ordinary dwelling house the back porch of which was defective, but this was unknown to the landlord and his agents, though probably ascertainable by an examination with ordinary care. The inmates swore they had no idea it was dangerous, after living there eleven months. Their next-door neighbor swore that the porch could be seen from an upper window to pull away from the house, and that she repeatedly warned them of its condition.

The case was not one of hidden defects known to, and concealed by, the landlord.

There is no implied covenant that the demised premises are fit for occupation, or for the particular use which the tenant means to make of them.

which Mrs. Hines occupied as a tenant of defendant, Willcox. She was injured at the same time and by the same accident as that which resulted in the injury to Mrs. Hines. The plaintiffs have appealed, and assigned errors. The same errors are assigned as in the Hines Case, and others especially 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

1 Thomp. Neg. 323; 1 Taylor, Land. & T. 197, 294, 381; Wood, Land. & T. 855, note; Cowen v. Sunderland, 145 Mass. 363; Jaffe v. Harteau, 56 N. Y. 398, 15 Am. Rep. 438; Keates v. Earl Cadogan, 10 C. B. 591; Krueger v. Ferrant, 29 Minn. 385, 43 Am. Rep. 223; Mullen v. Rainear, 45 N. J. L. 520; Chadwick v. Woodward, 13 Abb. N. C. 441; Cleves v. Willoughby, 7 Hill, 83; McGlashan v. Tall-injuries so sustained. But those who claim madge, 37 Barb. 313; Howard v. Doolittle, 3 Duer, 464; Dutton v. Gerrish, 9 Cush. 89, 59 Am. Dec. 45; Banks v. White, 1 Sneed, 614; Southern Oil Works v. Bickford, 14 Lea, 657; Young v. Bransford, 12 Lea, 244; Pingrey, Real Prop. S$ 592, 587; Shearm. & Redf. Neg. 711; Ray, Negligence of Imposed Duties, p. 61.

Upon the general duty of self-protection, see Cooley, Torts, 2d ed. p. 570; Brown v. Leach, 107 Mass. 364.

The boarder, being on the dangerous premises by the tenant's invitation, and not the landlord's, must look to the tenant alone for damages from their defects.

Shearm. & Redf. Neg. § 711; Tiedeman, Real Prop. 2d ed. § 189; Burdick v. Cheadle, 26 Ohio St. 393, 20 Am. Rep. 767.

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 (§ 711), but the same authors say, in the same section: "If the landlord lets the place for a purpose for which he knows, or ought to know, it to be unfit, knowing that strangers. will be invited there, it has been held that he is liable to them." And the same authors say ($709): "Even the entire surrender of control over land to a lessee does not relieve the owner from liability to third persons for defects which existed in it when he parted with its 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, The facts in this case and the result of the as a desirable feature for this purpose. 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 Tenn. 148, post, except that the plain-tenant when injured; and, in consequence,

In Young v. Bransford, supra, it was held that where machinery defective through the bailor's negligence was bailed, gratuitously or for hire, and a third person was injured by the defect, the bailor was not liable to the injured party.

The landlord owes no duty to the tenant's guest or boarder.

Mellen v. Morrill, 126 Mass. 545, 30 Am. Rep. 695.

Camp v. Wood, 76 N. Y. 92, 32 Am. Rep. 282, is not in point here.

Wilkes, J., delivered the opinion of the

court:

The

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.

open door on to the top of a piazza, which had
no railing around it, and from there stepped
off to the ground. Held, that the landlord
was liable. In Jessen v. Sweigert, 66 Cal. 182,
it was held that the owner, and not the tenant
in possession, was liable for injury resulting
to a third person from the fall of an awning
in front of the building.

It is the duty of the landlord, when he leases 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 he 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 father 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 heavy merchandise in the upper story; it family, and, unless apprised of the hidden appearing that the building had 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 disin Ray, Negligence of Imposed Duties, Per close his 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 she 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 Saltonstall 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 & H. 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 ball. 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

1896.

STENBERG V. WILLCOX.

nui

leads directly to the accident and wrong com- |ises in a ruinous condition, or (3) when he has Again, in Nugent v. Bosplained 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." for 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 son 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 auing that it is so imperfectly and carelessly built thorizes a continuance of the condition they Again, in the case 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." 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 the 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 whether, 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 continuance of it." Again, "in Todd v. Flight, 9 C. B. N. S. 377, it was held that an action lies against the owner of premises who lets them to a tenant in a ruinous and dangerous condition, and who causes or permits them to remain so until by reason of the want of reparation they fall upon and injure the house of an adjoining Again, in Nelson v. Liverpool Brew ery Co. L. R. 2 C. P. Div. 311, it was held that a landlord is liable for an injury to a stranger by the defective repair of demised premises only when he has contracted with the tenant to repair, or when he has been guilty of misfeasance, as, for instance, in letting the premises in a ruinous condition, in all other cases he is exempt from responsibility for accidents happening to strangers during the tenancy.' Again, in Woodfall, Land. & T. 13th ed. 735, it is said: "As regards the liability of landlords to third persons, it may be taken as a general rule that the tenant and not the landlord is liable to third persons for any accident or injury occasioned to them by the premises being in a dangerous condition, and the only exceptions to this rule appear to arise when the landlord has either (1) contracted with the tenant to repair, or (2) when he lets the prem-post, -34 L. R. A.

owner.

"

دو

If

sion are also suspended, except as to such
matters or defects in the premises as existed
when the premises were let, arising from the
manner of use, or defective construction.
a nuisance existed upon the premises at the
time of the demise, the landlord as well as the
tenant is liable for the damages resulting to
third persons therefrom, although it becomes a
nuisance only by the act of the tenant in using
it for ordinary purposes." This we under-
stand to be the holding of this court in Young
See also colla-
v. Bransford, 12 Lea, 244, citing 1 Thomp.
Neg. 317; Whart. Neg. § 817.
tion of authorities holding the same doctrine
in 12 Am. & Eng. Enc. Law, pp. 690, 691, and
notes; Taylor, Land. & T. 8th ed. § 175;
Shearm. & Redf. Neg. §§ 175, 175a.

We think there was error in the charge of the learned trial judge, upon the liability of the landlord to plaintiff, under the facts of this case; and the judgment is reversed, and cause remanded for a new trial. The appellee will pay the costs of the appeal.

A rehearing was denied in this case on March 5, 1896, and the opinion is printed in connection with the case of Hines v. Willcox,

UNITED STATES CIRCUIT COURT OF APPEALS, EIGHTH CIRCUIT.

APPEAL by complainants from a decree of Sands, 47 Kan. 591; Jones v. Kellogg, 51 Kan.

NOTE. For participation by a creditor in the | a transfer in payment or for security, see note to fraudulent intent of his debtor which will avoid Rice v. Wood (Ark.) 31 L. R. A. 609.