Livingston v. Essex Investment Co.

BarNhill, J.,

dissenting: There is sufficient evidence in the record tending to show that the defendant, through its agent, at the time it leased the residence to plaintiff’s husband, contracted to make repairs, including repairs to the steps. There is also evidence that the defendant undertook to comply with this agreement and did, in fact, through a contractor employed by it, make repairs to steps, as well as to the dwelling.

The steps from which plaintiff fell are not steps to the residence. The residence is located upon a lot, the elevation of which is above the street level. The steps to which reference is made are those which lead from the surface of the lot to the level of the street. The plaintiff having fallen as she passd down the steps and having received personal injuries, brings this action in tort for damages, alleging negligence.

The allegation of negligence is this:

“8. That the said defendant in making repairs to said steps, was negligent in that the said bricks on that portion of the steps from which plaintiff was precipitated, as hereinbefore set out, were not properly encased in mortar and were left in an insecure and loose condition by reason of which carelessness and negligence the said steps were in an insecure and unsafe condition at the time of said injuries, and which said negligence was the proximate cause of the injuries hereinbefore set out.”

The plaintiff expressly alleges further that after the repairs to the steps were made that the steps “appeared to have been properly repaired, and that the bricks that had been removed were replaced, and that the plaintiff, with her husband, detected no defects in the steps and used the same for a period of two or three weeks . . . that there was nothing about the appearance of said steps to indicate in any way the condition hereinafter set out.”

The liability of a lessor who is under contract to make repairs, for failure to make such repairs or for failure to have the repairs made in a workmanlike manner, depends upon the circumstances and is, to a large measure, dependent upon the purpose for which the premises are leased and the terms of the agreement. Thus it is that when premises are demised for the common use of several tenants and certain parts thereof —such as passageways in tenant houses, apartment buildings and the like — are reserved by the landlord for the common use of all the tenants, there is liability for a negligent failure to keep such property reserved for the common use of all in proper repair. Bolitto v. Mintz, 148 Atl., 737, and eases cited.

Here, however, the property was demised for private use as a dwelling. What is the liability, if any, of the landlord for personal injuries sustained by the tenant’s wife because of the defective condition of the *428steps leading from the surface of tbe lot down to tbe surface of tbe street, is tbe question presented.

While, in ordinary parlance, tbe word “negligence” may mean any type of carelessness, when used in a legal sense, it bas a definite, tecbnical meaning. Tbe term as used in tbe textbooks and in tbe decisions of tbis and other courts means a failure to perform some duty imposed by law. It is a want of due care in tbe performance of a legal duty. To establish actionable negligence it must appear: first, that there bas been a failure to exercise proper care in tbe performance of some legal duty which tbe defendant owed tbe plaintiff under tbe circumstances in which they were placed, proper care being that degree of care which a prudent man should use under like circumstances when charged with a like duty, and second, that such negligent breach of duty was the proximate cause of injury to person or damage to property. If we are to follow an unbroken line of decisions of tbis Court and tbe generally prevailing view we must give tbe word “negligence” tbis meaning in interpreting and applying decisions and textbook statements in arriving at our conclusion upon tbe question presented.

Negligence is bottomed on a breach of duty imposed by law. An action of damages caused by negligence is an action ex delicto, and it is a cardinal principle of law that a mere breach of contract does not, in and of itself, constitute a tort. Tbe contract creates a relationship. Tbe relationship so created, in some instances, imposes a legal duty. It is tbe breach of tbe legal duty thus imposed, and not tbe breach of tbe contract, that gives rise to an action in tort for negligence.

Where there is a contract to repair, a failure to make repairs or a failure to adequately and properly repair, is nothing more than a breach of contract. To give rise to an action in tort something more must appear.

Tbe view is taken that where tbe only relation between tbe parties is contractual tbe liability of one to tbe other in an action of tort for negligence must be based upon some positive duty which tbe law imposes because of tbe relationship or because of tbe negligent manner in which some act which tbe contract provides for is done, and tbe mere violation of tbe contract where there is no legal duty is not tbe basis of such an action. 32 Am. Jur., 598; Anno., 8 A. L. R., 774; Anno., 68 A. L. R., 1203; Jacobson v. Leventhal, 128 Me., 424; 68 A. L. R., 1192.

“Tbe action of tort has for its foundation tbe negligence of tbe defendant, and tbis means more than a mere breach of a promise. Otherwise, tbe failure to meet a note, or any other promise to pay money, would sustain an action in tort for negligence, and thus tbe promisor be made liable for all tbe consequential damages arising from such failure. As a general rule, there must be some active negligence or misfeasance to *429support tort. There must be some breach of duty distinct from breach of contract.” Tuttle v. Mfg. Co., 145 Mass., 169. There must be something more than a breach of contract, viz., negligence. Upon no other theory can a basis be established for an action sounding in tort. Kohnle v. Paxton, 268 Mo., 463. “Put more plainly, an agreement to repair does not contemplate a destruction of life or an injury to the person which may result accidentally from an omission to fulfill the terms of the agreement.” Kohnle v. Paxton, supra.

While some relationships created by contract — such as master and servant, carrier and passenger — impose certain legal duties, no such legal duties result from the creation by contract of the relationship of lessor and lessee or landlord and tenant, when the property demised is for a private use.

Where the right of possession and enjoyment of the leased premises passes from the lessor the cases are practically agreed that in the absence of concealment or fraud by the landlord as to some defect in the premises known to him and unknown to the tenant the rule of caveal empior applies and the tenant takes the premises in whatever condition they may be in, thus assuming all risks of personal injuries from defects therein. This doctrine is in harmony with the common law rule that a lease is a conveyance of an estate or of an interest in real property or a transfer of the right to the possession and enjoyment of real property for a specified period of time or at will. In other words, it is a demise of real property for a limited time. The lessor merely sells, and the tenant buys, the right of use and occupancy for the period specified in the lease. So far as concerns the condition of the premises the relation created by a lease is substantially similar to that created by a deed or a contract for the sale of real property with the right of possession. Ey the greater weight of authority the fact that the lessor covenants to repair the premises does not affect this rule so far as concerns the lessor.’s liability for personal injuries to the lessee or those in privity with him due to defects in the premises leased for a private purpose, the possession of which has passed to the lessee, although the existence of the defect is attributable to the failure of the lessor to repair according to his covenant. See numerous cases cited in Anno., 8 A. L. R., 166. If the tenant claims that the repairs are not sufficient it is his duty to give notice thereof to the landlord and if he continues to occupy the premises the presumption obtains that he is satisfied with the repairs that have been made. Anno., 28 A. L. R., 1527; Cromwell v. Allen, 151 Ill. App., 404.

What then is the meaning of the statement contained in decisions of this and other courts to the effect that “the general rule is, that a landlord is not liable to his tenant for personal injuries sustained by reason of a defective condition of the demised premises, unless there be a con*430tract to repair which the landlord undertakes to fulfill and does his work negligently to the injury of the tenant.” Mercer v, Williams, 210 N. C., 456, 187 S. E., 556; Jordan v. Miller, 179 N. C., 73, 101 S. E., 550; Fields v. Ogburn, 178 N. C., 407, 100 S. E., 583; Colvin v. Beals, 187 Mass., 250.

It certainly does not mean that a tenant may recover for personal injuries alleged to have resulted from a mere failure on the part of the lessor to make repairs in a careful and workmanlike manner, for such damages are too remote and are not deemed to have been within the contemplation of the parties in making the contract. Jordan v. Miller, supra; Hudson v. Silk Co., 185 N. C., 342, 117 S. E., 396; Williams v. Fenster, 103 N. J. L., 566, 137 Atl., 406; Jacobson v. Leventhal, supra; 16 R. C. L., 1095; Anno., 68 A. L. R., 1195.

A contract to repair does not contemplate as damages for the failure to perform it that any liability for personal injuries shall grow out of the defective condition of the premises; but the duty of the tenant, if the landlord fails to properly perform his contract to repair, is to do the work himself and recover the costs in an action for that purpose. Jordan v. Miller, supra; 16 R. C. L., 1059, sec. 580; Anno., 8 A. L. R., 766; Anno., 68 A. L. R., 1195. The tenant may either notify the landlord that the repairs are insufficient or he may make the repairs and recover the reasonable expense or costs thereof from the landlord or charge it against the rent. Cases cited in notes 32 Am. Jur., 591.

The question is to be answered by first determining what legal duty, if any, is imposed upon the landlord under a contract of rental.

In the absence of warranty, deceit, or fraud on the part of the landlord, the rule of caveat emptor applies to leases of real estate, the control of which passes to the tenant, and it is the duty of the tenant to make examination of the demised premises to determine their safety and adaptability to the purposes for which they are hired. Hence, for personal injuries received by him from latent defects therein, of which the landlord had no knowledge at the time of the lease, the latter cannot be held responsible. 32 Am. Jur., 538, and cases cited in notes. 16 R. O. L., 775. So a landlord may be liable for not disclosing a latent source of danger, known to him to be such, and not discoverable by the tenant, 32 Am. Jur., 539, and cases cited in notes. This duty of disclosure arises not directly from the contract but from the relationship created by the contract, and is imposed by law by reason of such relationship.

When the lessor knows of latent defects which are attended with danger to an occupant and which a careful examination would not disclose, the lessor is bound to reveal them, in order that the lessee may guard against them. While the failure to reveal such facts may not be actual fraud or misrepresentation, it is such negligence as may lay the foundation of *431an action against the lessor if injury occurs. 32 Am. Jur., 541; 16 R. 0. L., 716; Fields v. Ogburn, supra, and cases cited; Jordan v. Miller, supra; Hudson v. Silk Co., supra; Tucker v. Yarn Mill Co., 194 N. C., 756, 140 S. E., 744; Mercer v. Williams, supra.

In the Miller case, supra, it is said that even where the lessor contracts to keep the premises in repair, the breach by the landlord of his contract will not ordinarily entitle the tenant, personally injured by a defect therein, existing because of the negligence of the landlord in failing to comply with his agreement to repair, to recover indemnity for such injuries, whether in contract or in tort, since such damages are too remote and cannot bo said to be fairly within the contemplation of the parties. The Mercer case, supra, is to like effect.

When the lessor contracts to make repairs and fails to make needed repairs or makes such repairs in an unworkmanlike manner this amounts to a breach of his duty imposed by the contract and does not give rise to an action in tort for negligence. By the greater weight of authority a breach of the covenant to repair, except as to latent defects known to the lessor and of which the tenant is ignorant, imposes no liability for personal injuries to the lessee or those in privity with him due to defects in the premises leased for a private use. Anno., 8 A. L. R., 766; 32 Am. Jur., 597.

Hence, as I view the law as disclosed by our decisions, by the textbooks and by the decisions of other courts, the only legal duties resting upon the landlord by reason of his contract relation created by the demise are: (1) to give notice of latent defects, existing at the time of the demise, of a kind to import menace of appreciable injury, when these are known to the landlord and of which the tenant is ignorant and is not likely to discover on reasonably careful inspection; and (2) in making repairs to refrain from creating such latent dangerous defects, and, if created, to give notice thereof to the tenant.

A breach of either of these duties imposed by law creates liability for resulting personal injuries under the law of negligence, the liability of the landlord not being so much dependent upon or affected by the covenant to repair as it is upon his affirmative wrong in creating or failing to give notice of a dangerous condition not observable by the tenant.

If the repairs are made in such manner as to leave latent dangerous defects which are known to the landlord and of which the tenant is ignorant and is not likely to discover on reasonably careful inspection, liability has been recognized and recovery sustained on the ground of negligent breach of duty. While the failure to reveal such facts may not be actual fraud or misrepresentations it is such negligence as may lay the foundation of an action against the lessor if injury results. 32 Am. Jur., 541; Fields v. Ogburn, supra.

*432Whether we accept the law as I understand it to bo or as stated in the majority opinion (and there is no substantial difference when the proper meaning is given to the term “negligence,” as used in the authorities cited), the plaintiff has failed to offer evidence sufficient to sustain her alleged cause of action.

On the question of negligence the evidence is brief.

Plaintiff’s husband testified: “After the work was done the appearance of the steps was good. The steps appeared to be in good shape. There was nothing about their appearance to indicate that any brick might be loose or improperly set in the mortar. . . . After daybreak I examined the steps and found one brick had come out and there seemed to be another loose one next to it on the right side coming down . . . The steps where my wife fell were made of brick that had mortar between them . . . The mortar is apparent to anyone walking the steps . . . My wife and I went up and down the steps during that period every day and we observed nothing at all wrong with them . . . During that time as I walked up and down the steps I did not feel any loose bricks. Every day during that period of time my wife and children were going up and down the steps. There was not a thing in the world to indicate anything other than that those steps had been properly repaired . . . She (plaintiff) walked on my left side . . . She slipped and fell and I picked her up . . . On the night my wife was injured she was on the extreme left side and I was on the right side.”

The plaintiff testified: “I used the steps after they were repaired usually going down the center. I observed the steps. They seemed to be in perfect condition. On the night of the accident I was going down the left-hand side. We were walking down the steps together . . . When I stepped on the brick it gave away with me. It gave way under my weight. It threw me and I hit my chin against the running board of the car and fell on my left arm . . . After the steps were repaired they looked like they were in perfect condition. As I walked up and down the steps the bricks were in plain view. The spaces between the bricks were clearly visible to me as I walked up and down. My husband and I had been going up and down the steps practically every day from the time they were repaired until I was hurt. There was about one-half inch of mortar between the bricks. It just looked like any other finished brick job. The steps were built by the bricks being placed side by side with mortar between them.”

The witness who repaired the steps after the accident testified: “I examined the steps the next morning and found there were two loose bricks that you could lift out in the last flight of steps a little bit more than half down. It was on the second flight . . . The material I found between the brick was lime and sand because I cleaned them off *433without any trouble. No cement . . . There was one brick separate and two together. The two were still sticking together after I made the examination. I broke them apart with my hands. Nothing to hold them but lime and sand. There was about one-half inch of mortar between the bricks. I have heard of builders who would tie bricks together without cement. They will not hold together securely. They will stick together if the foundation is wide. The filling was between the bricks. But looking at the filling between the bricks I don’t know whether you can tell the mortar has cement in it or not. I cannot tell by looking at the mortar whether it has cement or whether it hasn’t . . . When brickwork is exposed to the weather day in and day out and even if the mortar has cement, I think it will rot out in time. This mortar that I saw between those bricks had the appearance of having been there a long time ... I saw the steps before they were repaired and the Livingstons moved in. At that time there were several bricks out. These bricks were out at the same place that I repaired them. I could see there were repairs.”

Another witness for plaintiff testified: “I remember seeing the steps fixed before Christmas and the men who fixed them put mortar between the bricks . . . There was a couple of brick off of the bottom step. Not the step she fell off of. The family had been using the steps during that six weeks period.”

This evidence tends to show that the brick were properly encased in mortar. There is testimony that there were two loose brick. It is significant, however, that these loose brick were found on the right-hand end of the steps going down, while all the testimony tends to show that plaintiff went down the extreme left-hand end. According to her testimony and the testimony of all the other witnesses for plaintiff, she passed nowhere near the two loose brick about which testimony was offered.

The argument was made here that in laying the tread of the steps the outer line of brick was so laid that they extended about one inch over the base and that it was one of these brick that came loose and tripped the plaintiff. There is not a particle of evidence in the record to sustain this argument. “There was a couple of brick off of the bottom step. Not the step she fell off ofThus, there is a total absence of evidence that there were any loose brick in the steps along the course followed by the plaintiff at the time she fell.

The only suggestion that the repairs were not made in a workmanlike manner is contained in the evidence of the witness who repaired the steps after the accident. He stated that the mortar appeared to have been made with lime rather than with cement. There is, however, no evidence that lime is not a proper ingredient in common use in making mortar. *434On the contrary, it is a matter of common knowledge that it is used as an adhesive or binder. “Lime is much used in the preparation of cements and mortars ... to lime is to glue together; to cement.” Webster’s New Inter’n. Diet. (2d).

Plaintiff and her husband used these steps for about six weeks after they were repaired. There was mortar between the brick and they appeared to be in a perfectly safe condition. They anticipated no damage from the use thereof. How then can it be said, even if we admit negligence, that the defendant, domiciled in another state, could or should have foreseen that injury was likely to occur?

At most the evidence shows that plaintiff stepped on a loose brick and it “gave way under my weight.” There is no evidence that this brick was not “properly encased in mortar” or that it was “in an insecure and loose condition” before the accident. Bes ipsa loquitur does not apply. We may not assume, in the.absence of proof, that the brick gave way under her weight due to the manner in which it was set by defendant. Furthermore, there is a total failure of proof that the brick on which she stepped was one of those replaced by the workmen in making repairs. Nor is there any evidence that its condition prior to the accident was such as to put defendant on notice and thus impose liability for a failure to repair.

There is no allegation that defendant in making repairs created a latent dangerous defect. Nor is there any evidence thereof. Hence, there is neither allegation nor proof of the breach by defendant of any duty imposed by law. In fact, there is scant, if any, evidence of a failure to make repairs in a careful and workmanlike manner. I am, therefore, of the opinion that the motion for judgment as of nonsuit should have been sustained.

Stacy, C. J., and WiNbobue, J., concur in dissent.