Johnson v. Dixon

By the Court.

Daly, F. J.

If the injury to the plain tiff’s horse was the result, exclusively, of a wrongful act, or of negligence on the part of the defendant, the judgment was right, and that depends upon, whether the defendant, after being advised that a piece of wood had come off the floor of the stall, was bound to do what was necessary to render the floor secure and safe. It was proved that there was. an excavation under the stall, of about ten feet, and that the flooring of the stall was rotten. It was fair to presume, from the defendant’s being the proprietor of the stall, that this was known to him. It was not known to the plaintiff when she rented the stall, nor, as would appear, to her son, who had the charge of the horse. The son called the attention of the defendant’s agent, with whom the agreement for the use of the stall had heen made, to the fact that the piece of wood had come out of the floor, and that the stall was not fit for the hor^e, and received for answer, that a butcher had had a kicking horse there, and that he, the agent, would attend to it. The morning after this was said, it was found that the horse had broken through the floor; his hind leg was found through it, and in consequence of the injury thus received, the animal died. After the accident the defendant had the old floor torn up and a new one put down.

The plaintiff hired the use of the stall .from the defendant’s agent, for two dollars and fifty cents a month, and under a letting like this she was under no obligation to take up the defective floor and put down a new one. Where there is no express agreement on either side, the tenant, under such a holding is not bound to make repairs of so substantial and general a nature. • Horsefall v. Mather, Holt N. P. C. 7 ; Taylor’s Landlord and Tenant, 163. If, as appears from the defendant’s net, this was what was necessary to be done, to make the stall secure and safe for the purpose for which it was used, the obligation rested upon the defendant to do it, and such being the fact, the Justice was right in holding that it was through her negligence in not doing it, that the accident happened.

It is urged that under this letting the relation of landlord and tenant existed, and that as there was no express agreement on the part of the defendant to put or keep the'stall in repair, the plaintiff for an injury to her property, from the stall’s being out of repair, must bear the loss. It is undoubtedly the rule in tenancy of no greater duration than from year to year, where there is no agreement on the part of the landlord"to repair, that the tenant takes the premises as they are, for better or worse, and runs the hazard of their being, or of their becoming, untenantable. Post v. Vetter, 2 E. D. Smith, 248 ; Cleves v. Willoughby, 7 Hill, 83. The principle upon which the rule of caveat emptor is founded, is as applicable in such a case as in the purchase of a chattel. But this rule has its limitation, and does not apply where the premises become danger-pus or '-uninhabitable by the wrongful act or default of the landlord himself. Izon v. Gortin, 5 N. C. 501. In this case, the defendant’s agent was advised of the condition of the floor, " and bnt for his statement as to the canse which produced it, and his promise to attend to it, the horse might have been withdrawn and the accident prevented. • Neither the plaintiff nor her son could he deemed guilty of negligence. The son knew nothing of the excavation beneath the floor, bnt supposed that the floor rested upon solid ground, and the assurances given him by the defendant’s agent were of a nature to quiet all apprehension. That the horse was suffered to remain, upon a floor that was insecure and dangerous, until the accident happened, was by the default of the defendant’s agent, in not doing what he had promised to do. The defendant being under an obligation to repair the floor, and the defendant’s agent having promised to attend to it, the Justice had a right •to conclude that the horse, after the conversation between the plaintiff’s son and the agent, wras left in the stall upon the faith of that assurance. No attention was paid tp the floor by the agent until the horse fell through it, and it was in consequence of this default and neglect that the floor gave way. That the floor was insufficient to support the horse at the time when the accident happened, was owing exclusively to the wrongful act or default of the defendant or her agent, and to such a case the rule above referred to does not apply.

The judgment should be affirmed.

Bbadt, J. Concurred.