3 TENNESSEE SUPREME COURT. agree and bind themselves to keep said prem- | salient features which must determine the [Signed] A. V. S. Lindsley, Agent, During the rental year, M. P. Hines, the husband, died; and L. S. Hines, his widow, continued to occupy the premises under the same contract previously made with her and her husband, and the injuries occurred after his death. The case has been most ably and elaborately argued on both sides, and a vast array of authorities have been collected and commented upon. We can only notice the by an express agreement on the subject. Where there is no agreement to put the premises in repair the tenant takes them for better or worse, and the landlord is under no obligation to repair. If the premises are in good repair when demised, but afterwards become ruinous and dangerous, the landlord is not responsible therefor either to the occupant or to the public during the continuation of the lease, unless he has expressly agreed to repair. Clancy v. Byrne, 56 N. Y. 133, 15 Am. Rep. 331. Where the lessor does not covenant to repair demised premises, he cannot be made liable in damages to the lessee for their being out of repair. Joyce v. DeGinerville, 2 Mo. App. 596. In Norris v. Catmur, Cab. & E. 576, where a subtenant received an injury by a piece of the roof falling upon her head, the court says it is clear that the tenant could have sustained no action against the landlord for nonrepair. The plaintiff can be in no better position than the tenant. In Gott v. Gandy, 2 El. & Bl. 847, 2 C. L. Rep. 392, 23 L. J. Q. B. N. S. 1, 18 Jur. 310, a chimney fell and injured the tenant's goods, and the court held that the duty to repair did not rest upon the landlord from the mere relation of landlord and tenant. Erle, J., says: "The present action is in form of action for a wrong; but it is in substance for the breach of a duty arising from a contract between landlord and tenant. The plaintiffs ask us to interpolate into that contract a term without showing anything from which it might appear that it was intended by the parties that there should be such a term." In the absence of an agreement by the landlord to repair he is not answerable to the tenant for damages resulting to the latter from the want of necessary repairs. Laird v. McGeorge, 16 Misc. 70. Construction of covenant to repair. Where the tenant was injured because the floor of a back room on the second story was defectively and insufficiently supported and the lumber in the flooring worn and rotten, and the landlord had covenanted to make repairs, the court held that there was no duty to make the repairs until a reasonable time after notice, and since no notice had been given in this case there was no liability on the landlord. Sieber v. Blanc, 76 Cal. 173. Where the owner had undertaken to repair, and after the tenant had been in possession for five 34 L. R. A. evidence offered by plaintiff to show that deThe trial judge excluded from the jury all fendant made any promise or agreement to put the premises in good and safe condition before the rent contract was signed, and all evidence as to statements made that the premises had been put in safe and tenantable condition at the time and contemporaneous with its signing. This is assigned as error. cluding the evidence, the court said it was In exdone because: "(1) It goes to alter the terms of a written lease to plaintiff. (2) It attempts premises at the time of the demise, when no to introduce a warranty of the condition of the such warranty is contained in the lease. (3) Because the complaint made by plaintiff of the condition of the premises had no reference to the condition of the porch, or its insecurity, at or before the time the lease was executed; said complaints relating only to minor matters, such as the accumulation of dirt on the premises, the absence of glass from the windows, months the cellar stairs fell under her and she was injured, the court held that, it not appearing that the landlord knew of the defect in the stairs, or for the injury. The court says unless the landlord that he had been asked to repair, he was not liable knew the stairs were unsafe to use, or from the nary care and prudence he should have known of facts and circumstances in the exercise of orditheir dangerous condition, he cannot be made liable for a tort. And he will not be liable for breach sity of such repairs, and then only after a reasonof his contract unless he had notice of the necesable time had elapsed for him to make the repairs. Spellman v. Bannigan, 36 Hun, 174. to keep the elevator in repair will not give a right The mere fact that the landlord has undertaken of action for injuries caused by nonrepair if the landlord was not notified that repairs were needed. Sinton v. Butler, 40 Ohio St. 158. A landlord who has covenanted to repair is not arising from the want of repair. Sanders v. Smith. liable to the tenant in tort for personal injuries 5 Misc. 1. Warranty or representations by landlord. rants the safety of the ceiling he will be liable in If at the time of making the lease the owner warcase it falls upon and injures the tenant's infant child. Moore v. Steljes, 69 Fed. Rep. 518. condition of the water of a well, and, without remIf the landlord, after discovering the polluted edying the cause, permits the tenant to continue its use without notifying him of the cause, whereby for the damages. Especially when the landlord the tenant is made sick, the landlord will be liable had particularly warranted the water wholesome when he made the lease. The court said the landlord owed the duty to see that the premises were in a healthful condition, or at least to disclose any the premises unhealthful and not fit for habitafact within his knowledge which tended to make tion. Maywood v. Logan, 78 Mich. 135. a contagious disease has been in the house, and premises to be dry and safe from water will not and the absence of grates from some of the, in cases where the parol evidence in no way fireplaces in the house. Witness has testified contradicts or alters the terms of the written to nothing else. (4) The promise alleged to have been made by defendant's agent to put the place in repair, or the representations that the place had been put in repair, must be held to have reference only to the previous complaints made by the plaintiff." The plaintiff excepted to the action of the court. Taking up these grounds of the trial judge's action, we will examine them in the light of the facts of this case. contract, but tends to establish an independent or collateral agreement not in conflict with it. Betts v. Demumbrune, Cooke (Tenn.) 48; Leinau v. Smart, 11 Humph. 308; Cobb v. Wallace, 5 Coldw. 539, 98 Am. Dec. 435; Lytle v. Bass, 7 Coldw. 303; Stewart v. Phoenix Ins. Co. 9 Lea, 104; Vanleer v. Fain, 6 Humph. 104; Ferguson v. Rafferty (Pa., 6 L. R. A. 33, notes; Durkin v. Cobleigh (Mass.) 17 L. R. A. 270, and notes. Nor does it apply in cases where The general rule is that parol evidence is the original contract was verbal and entire, not admissible to contradict a written agree- and a part only of it was reduced to writing. ment, whether simple or by deed. Bedford v. 1 Greenl. Ev. 15th ed. § 284a; 1 Starkie, Ev. Flowers, 11 Humph. 242; Ellis v. Hamilton, 4367; Vanleer v. Fain, 6 Humph. 104: Dick v. Sneed, 512: Bryan v. Hunt, Id. 544, 70 Am. Martin, 7 Humph. 263; Mitchell v. Planters' Dec. 262; Price v. Allen, 9 Humph. 703; Mc- Bank, 8 Humph. 216; Leinau v. Smart, 11 Lean v. State, 8 Heisk. 22; Fields v. Stunston, Humph. 308; Cobb v. O'Neal, 2 Sneed, 438; 1 Coldw. 40; Stewart v. Phonix Ins. Co. 9 Lea, Cobb v. Wallace, 5 Coldw. 539, 98 Am. Dec. 435; 104; Weisinger v. Bank of Gallatin, 10 Lea, | Bryan v. Hunt, 4 Sneed, 543, 70 Am. Dec. 330; Nashville L. Ins. Co. v. Mathews, 8 Lea, 362; Lytle v. Bass, 7 Coldw. 303; Bissenger v. 508; East Tennessee & V. R. Co. v. Gammon, Guiteman, 6 Heisk. 277; Hicks v. Smith, 4 Lea, 5 Sneed. 571; Kearley v. Duncan, 1 Head, 400, 464; Smith v. O'Donnell, 8 Lea, 468; Hawkins 73 Am. Dec. 179. But this rule does not apply | v. Lee, Id. 42; Breeden v. Grigg, 8 Baxt. 163; give the tenant a right of action in case, by reason, of the defective construction of the walls and a period of high water, water is backed up in the sewer and goes through the walls causing damage. Loupe v. Wood, 51 Cal. 586. So, where, previous to the making of the lease, the owner said he would put the water closet and drainage in order, and subsequently said the water closet was in perfect order, whereupon the lease was executed and the tenant brought action to recover for illness caused by defects in the closet, recovery was denied upon the ground that the representations did not amount to an agreement nor to fraud, and that the tenant could maintain no action. Burstal v. Bianchi, 65 L. T. N. S. 678. Fraud or deceit. stronger than this: If he knows of a defect which is likely to produce injury, the nature of which is such that careful examination by the tenant would not disclose it, he must notify the tenant of it. It is not his duty to search for defects, and if the defect is easily discoverable he need not mention it. There is no legal presumption that a landlord has knowledge of the particular condition of a house leased by him from the facts that he is the owner, that he resides next door, and that the house has been vacant for several months. Jackson v. Odell, 9 Daly, 371. A landlord is not liable for injuries to the tenant by a snow-slide which destroyed the house, on the ground that he did not warn the tenant of the danger. The court says the evidence wholly failed to show that there was any special and secret danThe landlord may be liable in case he is guilty of ger from snow slides, which was known to the fraud or deceit in effecting the lease. landlord, and which could not have been ascertained by the tenant. Doyle v. Union P. R. Co. 147 U. S. 413, 37 L. ed. 223. A lessor of a building having defective walls is not liable to the lessee, who had full opportunity to ascertain its condition, which was apparent to the most casual observer, from damages arising from the fall of the walls, in the absence of express warranty or misrepresentation. Davidson V. Fischer, 11 Colo. 583. In Stevens v. Pierce, 151 Mass. 207, which was an action for recovery of rent paid, the court says the only remedy was in tort for fraud and deceit in inducing the taking of the lease, or for negligence in failing to inform the tenant, if by reason of a concealed defect which could not readily be discovered and which was known to the owner and not known to the tenant the house was dangerous to those who might occupy it. But in Keates v. Earl Cadogan, 10 C. B. 591, 20 L. J. C. P. N. S. 76, 15 Jur. 428, where the house fell and it was alleged that the lives of the tenant and his family were greatly endangered thereby, the court held that an action of deceit would not lie | because of the mere fact that the owner knew that the tenant wanted the place for immediate occupation, and that it was in an unfit and dangerous state, and did not disclose that fact to the tenant. So, it has been held that a lessee of a building who sustains injury occasioned by the defective condition of the building cannot maintain an action of tort against the lessor founded upon a breach of an agreement to repair the building within a reasonable time. That form of action cannot arise out of a mere breach of contract. Tuttle v. George H. Gilbert Mfg. Co. 145 Mass. 169. Concealment of defects. As a branch of the liability of the landlord for fraud or deceit the question has arisen as to how far it is his duty to disclose defects or to warn of dangers. The rule on this subject seems to be no Mere failure of the landlord to disclose defects in the plumbing, of which he has knowledge, will not render him liable as for fraud in case the tenant is made sick by such defect. Blake v. Ranous, 25 Ill. App. 486. There are few instances in which it is the duty of the landlord to disclose to the intending tenant any defects in the subject of negotiation. The rule is that the landlord is not bound to disclose any defects in the structure or condition of the premises that make them unfit for habitation. Defects in plumbing or flues cannot be discovered, perhaps, by any examination the intending tenant can be expected to make, but it has never been held that the landlord is bound under the penalty of fraud to disclose such defects, even though he be aware of them. Coulson v. Whiting, 14 Abb. N. C. 63. Where the tenant was injured by the breaking of a stair which had been sawed by a former occupant of the premises, the court says there can be no liability on the part of the landlord without knowledge of the defect. He must disclose concealed TENNESSEE SUPREME COURT. FEB., Waterbury v. Russell, Id. 162; Brady v. Isler, | that the slave should not be removed out of the 9 Lea, 356; Barnard v. Roane Iron Co. 85 Tenn. county. 139. Parol evidence is admissible as to collateral matters not varying the terms of the writing, such as fraud in the soundness of an article, when the written warranty entends only as to title (M' Farlane v. Moore, 1 Overt. 174, 3 Am. Dec. 752; Lytle v. Bass, 7 Coldw. 303); or when fraudulent representations were made in negotiating the contract (Barnard v. Roane Iron Co. 85 Tenn. 139); or when representations and statements are made as inducements to the contract, and form the basis or consideration of it. Waterbury v. Russell, 8 Baxt. 162; Hogg v. Cardwell, 4 Sneed, 157. Demumbrune, Cooke (Tenn.) 48, the written In Betts v. contract was for the rent of a tavern. It was permitted to be shown by parol that the landlord agreed to erect a kitchen on the ground; that this was an inducement to rent the tavern, and only part of the contract was in writing, In Vanleer v. Fain, 6 Humph. 104, it was held that, in a written contract for the hire of a slave, parol evidence could be introduced to show that one of the terms of the hiring was sources of mischief about the house which no ex-| amination can discover if he has knowledge of them. But that exception to the rule does not apply to the case of a saw cut in one of the treads of a staircase, especially where the owner tried the step and it bore his weight, and he thought it would bear anybody's. The tenant having neglected to require any warranty from the landlord, and having had full opportunity to examine the tenement, it was his own fault if he did not see what was apparent on the surface. The law is unusually strict in exempting the landlord from liability for injuries arising from defects when there is no warranty and no actual deceit. Bowe v. Hunking, 135 Mass. 380, 46 Am. Rep. 471. In Naumberg v. Young, 44 N. J. L. 331, 43 Am. Rep. 380, which was an action to recover money ex; pended for putting the premises in condition and for losses incurred by inability to use them when the term began, the court recognizes the rule that there is no implied duty on the owner of a house which is in a ruinous and unsafe condition to inform a proposed tenant that it is unsafe for habitation, and no action will lie against him for failure to do so, in the absence of express warranty or deceit. The duty of the landlord to disclose hidden defects does not spring directly from the contract but from the relation of the parties, and is imposed by law. When there are concealed defects attended with danger to the occupant, and which a careful examination will not discover, known to the lessor, the latter is bound to reveal them in order that the lessee may guard against them. tion applies to the case of an insecure covering to And this excepa cess-pool in the yard, which is covered with earth so that grass and weeds are growing over it, and the location of it is not pointed out to the tenant. Cowen v. Sunderland, 145 Mass. 363. But where the tenant was injured by falling into a cess-pool in the yard, which was covered by an iron cover set into wooden frames which had become decayed, the court said it was as much her duty when she hired the house and yard to examine the premises and ascertain whether they were in such repair that she could use them as of the owner. And it was held that she could not recover because the existence of the cover was plainly visible. the court says, if there is a concealed defect that renders the premises dangerous, which the tenant cannot discover by the exercise of reasonable dili34 L. R. A. But there was a written contract for the sale of a In Leinau v. Smart, 11 Humph. 308, tavern, and it was permitted to show by parol, as part of the same agreement, and an inducement to it, that the vendor would close up another tavern he owned in the same town. In Dick v. Martin, 7 Humph. 263, parol evidence was allowed to prove an agreement to waive demand and notice of negotiable paper, although made at the time of the indorsement, which was full and dated. In Mitchell v. Planters' Bank, 8 Humph. 216, it was permitted to be shown by parol that the cashier of a bank had promised the indorser's name on the note, informed the directors that one of the makers the evidence being treated as part of the res gesta. In Cobb v. O'Neal, 2 Sneed, 439, there was a written warranty of the soundness of a slave. It was permitted to show by parol that the vendee agreed to look to a third person, and not to the warrantor, in case of a breach, in consideration of an abatement in price. In Bryan v. Hunt, 3 Sneed, 543, 70 Am. Dec. 262, it was held that the general rule excluding parol gence, of which the landlord has or ought to have knowledge, it is the duty of the landlord to disclose it, and he is liable for an injury which results from the concealment of it. Booth v. Merriam, 155 Mass. 521. a house, being partly filled up and containing A concealed well operating as a cess-pool under water, dead vermin, and filth, from which noxious vapors arise to the injury of the health of the occupants, constitutes a nuisance, and renders the owner who erected the house over it liable for injuries to a tenant who had no knowledge of it. The court says the cause of action is based upon the maxim that everyone must so use his own duty of defendant to disclose to the tenant defects premises as not to injure others, and that it was the in the premises amounting to nuisance known to the defendant and concealed from plaintiff, which would calculate to impair and had impaired the health of plaintiff. Kern v. Myll, 80 Mich. 525, 8 L. R. A. 682. not support the declaration, and it appeared that But upon another trial of the case the proof did before the house was erected, years before the suit was brought, the well had been filled up even with complaint had been made to the landlord while the surface, and during all the intervening time no plaintiff had occupied for three years without complaint, and there was nothing to put defendant the well become a cess-pool. The court says the on notice of the fact that the filling had sunk and landlord was not chargeable with such negligent ignorance as is equivalent to actual knowledge, 481. and a recovery was denied. Kern v. Myll, 94 Mich. where the action was for rent, which the tenant ter was boarded over so that the tenant could not evidence has no application to agreements made not remove his tools therefrom, and other consubsequent to the execution of the written con- ditions. In Smith v. O'Donnell, 8 Lea, 468, it tract. In Cobb v. Wallace, 5 Coldw. 539, 98 was held that a contract might be part in writAm. Dec. 435, there was a written contracting and part in parol, and in such case parol for the hire of a coal barge. It was allowed evidence was admissible. In Breeden v. Grigg, to prove by parol that it was hired for one par- 8 Baxt. 163, it was held that parol evidence is ticular purpose and trip only, and the question admissible to prove conditions upon which a whether the writing embraced the whole con- written contract was made. In Waterbury v. tract was for the jury. In Lytle v. Bass, 7 Russell, 8 Baxt. 162, there was a sale of corn, Coldw. 303, a note was given for a sawmill. -contract in writing. It was permitted to be It was permitted to show, as a seperate, collat- shown by parol that the corn was represented eral, substantive agreement, that the vendor to be sound, as an inducement to the written warranted the sawmill. In Bissenger v. Guite contract. In Brady v. Isler, 9 Lea, 357, it was man, 6 Heisk. 277, it was held that it was com- held that parol proof may be allowed to show petent to show by parol that, at the time a whether a written contract was in fact made, promissory note was executed, it was agreed it or whether it was to take effect only on certain should be held for nothing, on the happening conditions. In Barnard v. Roane Iron Co. it of a specific condition. In Hicks v. Smith, 4 was held that, in a proceeding by a vendor to Lea, 463, there was a mortgage, and it was per- rescind a contract for the sale of land on the mitted to show by parol that Thomas should ground of fraud, parol evidence of the fraudhave priority when it was satisfied, though the ulent representations of the vendee, made in mortgage did not so provide. In Hawkins v. negotiating the contract, is admissible, the Lee, 8 Lea, 42, it was allowed to add terms to a purpose being to show that the vendor was enwritten contract by parol, to the effect that trapped into an agreement that he otherwise plaintiff was to work at a particular place, and would not have made. The general rule, as he does not disclose the condition to the tenant. | and failed to disclose the condition to the tenant, Martin v. Richards, 155 Mass. 381. although it was so situated as not to be readily discoverable to them, and the court held that because of his failure to disclose his knowledge he was lia The owner of a dwelling house, who, knowing that it is infected with small pox so as to endanger the health of the occupants, leases it for the pur-ble for the injury. poses of a habitation without disclosing the fact to one who is ignorant of its condition, and who, with out contributory negligence on his part, by reason of the state of the house, is attacked by the disease, will be liable for the injury. Minor v. Sharon, 112 Mass. 477, 27 Am. Rep. 122. A landlord who lets premises knowing that they are infected with a contagious disease without notifying the tenant thereof is liable to the latter, in case the disease is communicated, for the damage sustained. Cesar v. Karutz, 60 N. Y. 229, 19 Am. Rep. 164. In an action by a tenant for injuries caused by contracting diphtheria in the landlord's house, the court says it is settled that a landlord may be liable for not disclosing a source of danger known to bin to be such and not discoverable by the tenant. But it is not enough that the landlord knows of the source of danger unless he also knows or common experience shows that it is dangerous. He is bound at his peril to know the teachings of common experience; but he is not bound to foresee the results of which common experience could not warn him and which only a specialist would apprehend. The general rule between landlord and tenant is caveat emptor. And this rule cannot be eluded by showing that the tenant did not know of a defect, that the landlord did, and then asking the jury to pronounce it a secret source of danger. Cutter v. Hamlen, 147 Mass. 471, 1 L. R. A. 429. The court further holds that the landlord is bound to disclose the fact that the drains are in bad condition, and that there has been a case of diphtheria in the house within a short time. The court says there is strong ground for requiring the tenant to insist on a warrant of the safety of drains if he does not wish to take the risk; but that defective drains in combination with diphtheria in the house indicate a special danger of infection from the drains, and that the landlord could not keep quiet under such circumstances. In Coke v. Gutkese, 80 Ky. 598, 44 Am. Rep. 499, where the injury was to the tenant's daughter, it appeared that the landlord knew of the dangerous condition of a portion of the premises which would be frequently used by the tenant and his family, In Schmalzried v. White (Tenn.) 32 1. R. A. 782, the court held that the duty of disclosing to the tenant hidden defects and secret conditions that contributed to make the property unsafe is not imposed upon the landlord who is ignorant of them without fault or negligence on his part; but it says that this ruling is not intended to conflict with that in HINES V. WILLCOX, that the landlord is liable, not only for what he knows of the defects in the premises let, but for what he might have known by the exercise of reasonable care and diligence. Statutory liability. Under the English act of 1885, relating to the housing of the working classes, which requires that the house shall be in all respects reasonably fit for human habitation, the tenant may sue the landlord in case the premises are not reasonably fit for habitation so that the plaster on the ceiling falls and injures her. Walker v. Hobbs, L. R. 23 Q. B. Div. 458. Under the California Civil Code the tenant has the option, in case repairs are needed and they do not exceed in value a month's rent, to make them and deduct the amount from the rent or to vacate the premises, and in case he fails to exercise his option he cannot recover damages for injuries done by the dilapidated condition of the premises. Van Every v. Ogg, 59 Cal. 565. Where a statute required the owner to put the premises in a condition fit for occupation, and the tenant was injured by the fall of the woodshed which a servant of the landlord had assured the tenant was safe, the court held that the lessor would be liable for injuries resulting from defects in the premises known to him and unknown to the lessee if he allowed the lessee to occupy in ignorance of the risk. Whenever the defect is inherent and unknown to the lessor he is not accountable, nor can he be held when he has done all that a reasonably prudent man would have done towards fitting the place for occupation. It is as much the duty of the lessee to satisfy himself of the safety of the premises as it is of the lessor to make them so; and when it would appear from an examination such as an ordinarily prudent man would make be TENNESSEE SUPREME COURT. FEB.. well as the different cases in which it does not | assumed or representation made, by the landso apply as to exclude parol evidence, is forci- lord; so that if the landlord agreed to do any bly stated, and fully commented on in Fergu- thing to the premises to make them safe, or son v. Rafferty (Pa.) 6 L. R. A. 33, and notes; represented that he had made them safe, which Durkin v. Cobleigh (Mass.) 17 L. R. A. 270, and induced the plaintiff to make the contract, or notes. not embraced in the writing. which was to be a part of the contract, it was ord shows that not all the requirements made of the tenant are embraced; for the parol eviIndeed, the recdence, as well as the note filed, shows that it was one of the vital terms of the contract that Mrs. Hines should bind her separate estate for the payment of the notes, and that she did attempt to do so in the notes. This was an independent, collateral agreement to the contract of rental, and an inducement to make it not embraced in the lease contract which was written. evidence tending to show that the defendant We are of opinion it was error to exclude if such were made before the contract was agreed to put the premises in safe condition, closed, and also evidence tending to show that, at the time the contract was signed, defendant or his agent represented that they had been put in safe condition as promised. It must be admitted that, in the multitude of exceptions to the general rule, much confusion has arisen, not only in our state, but elsewhere; so that the exact limit to be placed upon the exceptions depends, not only upon the peculiar facts of each case, but also, to some extent, upon the peculiar cast of thought of the individuals composing the court, as is substantially said in Richardson v. Thompson, 1 Humph. 154. Nevertheless, the exceptions are as well sustained and based upon authority as is the general rule, and there remains only the application of the rule and its exceptions to each case as it arises. as presented in this record, it is evident at a Looking to the case glance that the written contract set out only relates to the obligation and undertaking imposed upon the tenant, and it makes not the remotest reference to any act to be done, or obligation ever or through some patent defect in the plan of the contrivance the tenants could not recover, but if the structure was proper but was insufficiently secured and therefore gave way under the attempted use there might perhaps be a recovery. Smith v. Buttner, 90 Cal. 95. fore venturing to reside in or upon the premises court held that if the fall was caused because the that they were unsafe, and the defect rendering | owner failed to provide any means of egress whatthem so is discernible, the lessee is presumed to have had notice of such defect and accepted the risk incident thereto if he occupies the premises. If he could have discovered the defect by examination he was not justified, in view of the fact that he suspected the safety of the premises, in relying on the assurance of the servant that they were safe. Daley v. Quick, 99 Cal. 179. If the injury results from a nuisance on the landlord's adjoining property there may be a recovery. As to neglect to provide fire escapes, see note to Alston v. Grant, 3 El. & Bl.128, 2 C.L. Rep. 933, 23 L. Rose v. King (Ohio) 15 L. R. A. 160. Landlord actively negligent. The landlord is liable for injuries caused by negligence in making repairs. Mitchell v. Plaut, 21 Ill. App. 148. If the landlord undertakes to make repairs, and the tenant is injured by the negligent manner in which they are made, the landlord is liable for the injury. Callahan v. Loughran, 102 Cal. 476; Little v. Macadaras, 29 Mo. App. 332, 38 Mo. App. 187. If the landlord undertakes to make repairs, and does it so unskilfully as to subsequently cause an injury to the tenant, he will be liable therefor. Gregor v. Cady, 82 Mo. 131. A landlord whose negligence in making ordinary repairs is the cause of a personal injury to the tenant is liable therefor. Gill v. Middleton, 105 Mass. 477, 7 Am. Rep. 548. If the owner in making repairs negligently causes the building to burn he will be liable to the tenant for his injury. Hine v. Cushing, 53 Hun, 519. If the repairs are negligently made the tenant may recover the damages which he suffers because of the defect, if he was ignorant that the premises had not been made safe. Walker v. Swayzee, 3 Abb. Pr. 138. In Franklin v. Brown, 21 Jones & S. 474, where the injury was caused by noxious gases which came through the window and which the evidence showed neither party knew of before the signing of the lease, so that there was nothing to show negligence on the part of the landlord, the court says, if guilty of negligence or other delictum which leads directly to the accident and wrong complained of, the landlord is liable. Where the owner raised the leased house and did not provide a safe and proper means of entrance to and egress from it and the tenant's wife fell and was injured in attempting to leave the house, the 34 L. R. A. J. Q. B. N. S. 163, 18 Jur. 332. Where the landlord removes the gas fixtures subsequently permits gas to be turned into the without plugging the ends of the openings, and pipes, by reason of which an explosion occurs and Kimmell v. Burfeind, 2 Daly, 155. injures the tenant, he will be liable for the injury. lord employed a plumber to make certain additions In Meany v. Abbott, 6 Phila. 256, where the landto the building, the court held that he was not liaground that the plumber was not his servant for ble for the defects in the work when done, on the whose acts he was liable. So, if the landlord, with the consent of the tennot be liable for injuries caused by the contractor's ant, lets the repairs out to a contractor, he will negligence. Francisco v. Brinkley.cited in 3 King's Dig. (Tenn.) 2d ed. § 3515. Contributory negligence. The tenant cannot recover if the unsafe conLove, 3 Or. 206. dition of the premises was his own fault. Kabn v. ous and has not been used for more than a year, If the tenant, knowing that a stairway is dangervoluntarily attempts to use it without adequate prevent a recovery against the landlord, although cause, she will be guilty of such negligence as to he has not complied with his promise to repair it. Town v. Armstrong, 75 Mich. 580. agreement to make repairs, the tenant cannot, In case the landlord does not comply with his knowing that his property will be exposed to injury if left on the premises, take the hazard of leaving it there at the risk of the landlord. If he cannot recover from the landlord therefor. Cook does leave it there, and the property is injured, he v. Soule, 56 N. Y. 420. that the landlord will be liable if he has negliIn Scott v. Simons, 54 N. H. 426, the court says |