The learned trial judge, however, excluded, art v. Phænix Ins. Co. 9 Lea, 104, 112. We the evidence also upon another ground; and think that it was therefore error in the trial that was because, in his opinion, the evidence judge to determine these questions, and exoffered did not go to the extent of setting | clude all evidence in regard to them. up a distinct collateral agreement to make the! premises safe, or an assurance that they bad been made safe, but that the evidence only went to show complainants about the sanitary condition of the premises, and promises in regard to the grates and windows and other minor details and assurances only as to them. The most material evidence upon this question is that of plaintiff, which is somewhat indefinite. She does not, in her evidence, mention the porch, and does refer to the windows and grates, and general sanitary condition of the premises; but she also says that the promise was to put the house in good repair,-safe repair. The question as to whether the entire contract was reduced to writing, or an independent collateral agreement was made, was a question of fact; and where there was any evidence to sustain the contention, it was a matter for the jury to determine, and not for the court. Cobb v. Wallace, 5 Coldw. 540, 98 Am. Dec. 435; Stew

The court charged the jury, among other things, substantially, that if the landlord knew the unsafe condition of the premises, and concealed the fact from the tenant, and that she did not know of their unsafe condition, or could not have known by the exercise of proper care and diligence, then she could recover, etc. It will be noted that the learned trial judge, in this charge, makes the tenant responsible, not only for the facts known to her, but also such as she could have known by the exercise of proper care and diligence; but he only holds the landlord responsible for his actual knowledge, and not for such knowledge as he might have had by the exercise of proper care and diligence. We think the great weigh. of authority is that, if a landlord lease premises which are at the time in an unsafe and dangerous condition, he will be liable to his tenant for damages that may result, if he knows the fact and conceals it, or if, by reasonable care

the fall was the act of an employee of an independent contractor in the room above, who pushed his foot through the ceiling. Fitzgerald v. Tim

gently constructed the premises or negligently | had promised to repair, if the proximate cause of suffered them to remain defective after notice that they have become so. But it holds that the evidence did not show that he had done either. The court further says the landlord might be lia-oney, 13 Misc. 327. ble to the tenant if after notice of the defect he failed to repair it, but "we think not to one who after being aware of the defect unnecessarily exposed his goods to injury by it."

If the tenant continues to occupy knowing of the dangerous condition of the premises he will be guilty of contributory negligence, and cannot recover for the injury caused by the accident. Kampinsky v. Hallo, 52 N. Y. S. R. 265.

If the tenant, knowing of the defective condition of the premises, continues to use them and is injured by the defect, contributory negligence will bar a recovery for the injury. Sanders v. Smith, 5 Misc. 1.

In Cantrell v. Fowler, 32 8. C. 589, it is said while the landlord would be liable for all injury which the tenant might sustain because of his breach of contract to repair, yet the tenant should not stand quietly by and voluntarily assume the risk of injury, thus contributing to his own loss. He ought to make the repairs himself, and charge the sum to the landlord.

A tenant has no right to use demised premises which he knows to be unfit for occupation in such a way as to cause damage and loss, and then seek to recover damages from his landlord for the injury so occasioned by his own act. Nichol v. Dusenbury, cited in 2 Hilt. 223.

In Arnold v. Clark, 13 Jones & S. 252, the court says although the representations as to the safety of the premises were false the tenant could not, having knowledge of the falsehood, take the risk of continuing its use and look to the landlord to indemnify him for any loss that he might sustain. And the same would be true in reference to a promise to repair. The measure of damages is what the repairs would cost if made by the tenant, or the loss in the use of the premises while making them, or the difference in rental value with and without them.

And that principle was followed in Kabus v. Frost, 18 Jones & S. 72.

Proximate cause.

A landlord is not liable for injuries to a tenant by the fall of plaster which was loose and which he

Measure of damages.

An express contract between landlord and tenant that the former is to repair the demised premises does not render him liable for an injury to the tenant arising from want of repair, although the tenant has notified him of the unsafe condition of the premises. The tenant's only remedy is to make the repairs at the expense of the landlord. Brown v. Toronto General Hospital, 23 Ont. Rep 599.

In case the owner does not put the building in repair as he agreed to do the tenant cannot recover for the loss of the services of one of his employees, an opera singer, who was made ill by the unsuitable condition of the premises. New York Academy of Music v. Hackett, 2 Hilt. 217.

Where the leasing of a house is procured by fraud in statements as to the capacity of the furnace the tenant may retain the premises, and recover his damages, which will be the difference between the rental value of the property as it is and as it would have been had it been as represented. Pryor v. Foster, 130 N. Y. 171.

If the landlord refuses to comply with his agreement to repair a dangerous pit-fall near the well, and the tenant falls into it and is injured, he cannot recover for the injury, since the damages are too remote. He should have had the repairs made at the expense of the landlord. Hamilton v. Feary, 8 Ind. App. 615.

In Flynn v. Hatton, 43 How. Pr. 333, it is said the ordinary damages for breach of a general agreement to keep the premises in repair are the expenses of repair and the loss of the use of the premises while the party contracting was in default, and such an agreement in no way contemplates any destruction of life or casualties to the person or property which might accidentally result from an omission to fulfil the agreement.

Distinguishable cases.

Undoubtedly the landlord should not be permitted to shield himself behind his bare statement that he did not know if under all the circumstances it is evident that he should have known of the

note.

TENNESSEE SUPREME COURT.

FEB.,

thorities presented by the defendant's attorneys in support of the trial judge's position, some of which are in conflict with the views herein given, we think the judgment of the court beloo must be reversed, and the cause remanded for a new trial. Appellee will pay costs of appeal.

filed, in response to which Wilkes, J., on A petition for rehearing was subsequently March 5, 1896, handed down the following response, which applies also to Stenberg v. Will cox (Tenn.) ante, 615:

and diligence he could have known of such dangerous and unsafe condition, provided rea-without commenting on the vast array of auWithout going further into the case, and sonable care and diligence are exercised by the tenant on his part. Taylor, Land. & T. 7th ed. $175; 2 Wood, Land. & T. p. 854, and note; Shearm. & Redf. Neg. $$ 709-711; Cowen v. Sunderland, 145 Mass. 363; Coke v. Gutkese, 80 Ky. 598, 44 Am. Rep. 499; Cesar v. Karutz, 60 N. Y. 229, 19 Am. Rep. 164; Lowell v. Spaulding, 50 Am. Dec. 780, Land. & T. 12th ed. 707; Godley v. Hagerty, note: Woodf. 20 Pa. 387, 59 Am. Dec. 731; Carson v. Godley, 26 Pa. 111, 67 Am. Dec. 404; Edwards v. New York & H. R. Co. 98 N. Y. 249, 50 Am. Rep. 659; Gill v. Middleton, 105 Mass. 477, 70 Am. Rep. 548. The same principle is held in our own case of Young v. Bransford, 12 Lea, 244, citing 1 Thomp. Neg. 317; Whart. Neg. $817, 845. See also Timlin v. Standard Oil Co. 126 N. Y. 514; Ahern v. Steele, 115 N. Y. 203, 5 L. R. A. 446; Maywood v. Logan, 78 Mich. 135; Lindsey v. Leighton, 150 Mass. 285; 12 Am. & Eng. Enc. Law, pp. 687, 691, This is not in conflict with the general rule that, in the absence of any stipulation or statement, there is no warranty that the premises are in a habitable condition, and no obligation to repair, as held in Southern Oil Works v. Bickford, 14 Lea, 657, and Banks v. White, 1 Sneed, 614; but the cases proceed upon the idea that the premises, when leased, are unsafe and that fact is known to the landlord and concealed by him from the tenant, or might have been known by him by the exercise of reasonable care and diligence. The liability does not arise upon any question of contract, but upon the obligation to the tenant not to expose him to danger of which the landlord knows, or could know by reasonable care, nor is it done away with by the fact that the parties examined the premises, and the tenant did not discover the defect if he exercised reasonable diligence. This view of the case was pre-ously, out of fix. sented in the second count of plaintiff's declaration. Upon this feature of the case the learned trial judge charged the jury, among other things: If the plaintiff had any right to recover, her right must depend upon what took place after the plaintiff took possession of the premises, and before the accident occurred."

defect. But the cases cited above seem to indicate that the cases are few in which the landlord, not actually knowing of a defect, should be charged with notice when the tenant should not be charged with the same notice. In Spellman v. Bannigan, 36 Hun, 174, the expression is used that the landlord would be liable if he knew or "from the facts and circumstances in the exercise of ordinary care and prudence he should have known" of the defect, and in Booth v. Merriam, 155 Mass. 521, it is said the landlord must disclose concealed defects of which he has "or ought to have knowledge." In each case the expression is a dictum. Of the cases cited in the rehearing opinion in HINES V. WILLCOX as containing such an expression Martin v. Richards, 155 Mass. 381, was a case of illness caused by a concealed vault which had been covered by a platform. The question was as to the admissibility of evidence. The court intimates that there might be a recovery if all the admissible evidence would warrant the jury in finding that at the time of the letting the defendant knew the source of danger, and knew or ought to have known that danger existed. There the facts were all known to the landlord or his agent, and the only question was 34 L. R. A.

|

filed, and pressed with much earnestness. In these causes petitions to rehear have been The trial judge in the court below correctly laid down the law in regard to the tenant, and imposed upon her the risk of the premises, if she knew, or by the exercise of reasonable care and diligence could have known, of their dangerous condition. court imposed upon the landlord a like degree It is complained that this of care in ascertaining whether his premises were in safe condition when he let them. The correctness of the rule and liability of the landlord is not denied when he has actual knowledge of the danger and fails to disclose it, but denied so far as it requires him to exercise reasonable care and diligence to acquaint himself with their condition. The facts assumed by counsel in arguing this point are worthy of notice. In one portion of his briefs he says: "Neither the landlord nor his agents had any notion [we suppose he means notice or knowledge] of the condition of the porch. . . . They so swear, no contradictory evidence." tion of his briefs he says: "The premises and there is were old, and, to my belief, the porch was In another porobviously dangerous at the outset." And again: "The porch was, at the outset, obvi would have used it. That is the simple truth No ordinarily careful person of the case." show a state of facts between these two exWe think the evidence tends to tremes, to wit, that the porch was unsafe when the premises were let, partly from the manner of construction, and partly from age, and that this was either known to, or by reasonable care

whether or not he ought to have known that the covered vault was dangerous. In State, Bashe, v. Boyce, 73 Md. 469, the injury occurred on a wharf, as to which there is an inclination to make an exception to the general rule. See note to McConnell v. Lemley (La. Ann.) ante, 609. In Carson v. Godley, 28 Pa. 111, 67 Am. Dec. 404, the owner constructed the building negligently in view of the uses to which it was to be put. In Cope v. Gutkese, 80 Ky. 598, 44 Am. Rep. 499, it was an admitted fact in the case that the owner knew of the defect.

said that it was not necessary to show that the land-
In Lindsey v. Leighton, 150 Mass. 285, where it is
lord had actual knowledge of the defect, that his
duty was that of due care, and ignorance of the de-
common stairway of a tenement house, as to which
fect was no defense, the injury occurred on the
an entirely different rule applies from that applica-
ble to cases where the tenant is in possession of
the entire property. See note to Dollard v. Roberts
(N. Y.) 14 L. R. A. 239.

of an injury on a common passage of a tenement
Moynihan v. Allyn, 162 Mass. 272, was also the case
house.
H. P. F.

TENNESSEE SUPREME COURT.

FEB.,

reasonable care and diligence in obtaining such | the time the lessees entered into the possession knowledge, not only when he knows, but of the storeroom does not appear. when he ought to know, of the defects, by trative of the application of the rule we have using ordinary care and diligence. As using laid down, we cite the following, among other As illusthis expression, we cite, among others, Martin cases, showing when the rule is applied, and v. Richards, 155 Mass. 381; State, Bashe, v. Boyce, 73 Md. 469; Carson v. Godley, 26 Pa. v. Edgar, 59 N. Y. 28, 17 Am. Rep. 295, a as to what persons held applicable: In Swords 111, 67 Am. Dec. 404; Coke v. Gutkese, 80 Ky. 'longshoreman in the service of the tenant sued 598, 44 Am. Rep. 499. In the late case of the owner, and recovered. In Godley v. HagLindsey v. Leighton, 150 Mass. 288, it was held erty, 20 Pa. 387, 59 Am. Dec. 731, a servant that it was not necessary to show that the owner of the tenant sued the owner, and recovered. had actual knowledge of the defects. was that of due care, and ignorance of the tenant sued the owner, and recovered. In His duty In Carson v. Godiey, supra, a customer of the defect was no defense, in the absence of such Cesar v. Karutz, 60 N. Y. 229, the owner was care. In Moynihan v. Allyn, 162 Mass. 272, held liable to the child of the tenant. In Coke it was held that it was the duty of the landlord v. Gutkese, supra, the owner was held liable to inform the tenant of any hidden defects, for injuries sustained by a child of the tenant. which could not be discovered by reasonable In Martin v. Richards, 155 Mass. 381, three diligence on his part, and of which the defend- cases were tried together, and the owner was ant ought, for his proper protection, to be held liable for an injury to the child and wife informed; citing quite a number of other Mas- of the tenant. sachusetts cases. Mr. Pingrey says, in § 592 of his work on Real Property: "Of course, if there is a concealed defect which renders the premises dangerous, which the tenant cannot discover by the exercise of reasonable diligence, of which the landlord has or ought to have knowledge, it is the landlord's duty to disclose it, and he is liable for an injury which results from his concealment of it." In § 594 the same author says: It is held that the obligation and liability are the same to the tenant's guest and to his servants, "and the landlord is responsible, unless it appears that such owner did not know, or by reasonable care and diligence could not have known, of the unsafe condition of the premises when he leased them."

Under the principle we have attempted to lay down, the landlord's liability, leaving the contract of lease out of view, is the same to the tenant as to his servant, or his guest, or his customer, or his wife or child, or to the stranger passing along the streets or on the premises for any legitimate purpose. by counsel apparently holding a doctrine conThe only case cited trary to that laid down by this court is that of Burdick v. Cheadle, 26 Ohio St. 393, 20 Am. Rep. 767. This case is also reported in 50 Am. Dec. 782, and referred to as a peculiar case, and, as we think, very justly criticised, as placing the party injured in a very anomalous position. The case is clearly out of line with the current of authority. It may be remarked, however, that in that case the court said: "Whether the noxious structures existed at 34 L. R. A.

477, three cases were tried together, and the In Minor v. Sharon, 112 Mass. owner was held liable for injuries to the tenant's children. 469, the owner was held liable for injuries to In State, Bashe, v. Boyce, 73 Md. the servant of the tenant. 105 Mass. 477, 7 Am. Rep. 548, the owner was In Gill v. Middleton, held liable for an injury to the wife of the tenant. 80 Me. 62, the owner was held liable to persons In Nugent v. Boston, C. & M. R. Co. rightfully on the premises. In Nelson v. Lirerpool Brewing Co. L. R. 2 C. P. Div. 311, the right of the servant of the tenant to sue was recognized. In Moynihan v. Allyn, 162 Mass. 272, the right of the child of the tenant to sue was recognized. And Mr. Pingrey, in his work no distinction in the rule as to the liability of on Real Property, expressly states that there is the owner to the tenant or to the tenant's guest, or to the tenant's servant. In each instance he says the rule is the same.

the causes upon further arguments or briefs. We see no reason or occasion for rebearing fense, and lay down no principles that have not The petitioners make no new grounds of dealready been fully argued by counsel for defendant, and still more fully investigated and considered by the court. useful purpose to have further argument along It could serve no lines that the court does not consider conclusive or material in the case. with its conclusions, and has no doubt of The court is satisfied their correctness when properly understood and applied.

The petition to rehear is denied, and dismissed.

WYOMING SUPREME COURT

GRAND ISLAND & NORTHERN WYOM-proceeding to enjoin defendants from collectING RAILROAD COMPANY