(concurring and dissenting).
I concur in the holding that the tenant would not be liable for damages caused by fire to the leased property. It was her apartment only that she was obligated to return in the same condition it was in when she took possession (wear and tear from ordinary use and damage by fire excepted).
It is clear that the landlord was to keep the apartment insured and that the cost of the premium for that insurance was included in the rent charged. It is unreasonable to assume that the premium for insurance on the entire complex was included in the rent for the “one apartment; or that by indirectly paying a premium for fire insurance on her apartment she would be excused from her negligence in causing a fire in another apartment of which she never had possession at any time.
It seems to me that the instant case is the same as that where an owner of a horse lets it to a deer hunter with a provision that the horse be returned in the same condition it was in when possession was taken except for harm caused by gunshot wounds. Suppose the owner also went deer hunting and his horse was negligently shot by the lessee of the other horse. Could anybody say that no liability exists because of the fact that the agreement provided for the return of the leased horse in good condition except for harm done to it by gunshot wounds?
I can see no reason to excuse a tortfeasor who may negligently set a fire in an apartment five stories below his own simply because he is not to be held liable for damage caused by fire to his own apartment. Liability for a fire that is permitted to escape from the1 leased apartment where it was negligently begun should be governed by the same rule of law as would be applicable to a fire which-was negligently set in some other apartment.
I would permit recovery for damages occasioned to apartments other than the one which was required to be returned in good condition.