Anderson v. Hayes

77 N.W. 891, 101 Wis. 538, 1899 Wisc. LEXIS 117

• Court: Wisconsin Supreme Court
• Decided: January 10, 1899
• Status: Published

Opinion

WiNslow, J.

These are actions by the employees of a tenant against the landlord for injuries resulting, as it is. claimed, from a concealed defect in the demised premises, known to the landlord, but not known by, nor disclosed to, the tenant, nor capable of being ascertained by the tenant, by a reasonably careful examination of the premises. The> principle is well settled that a tenant takes leased premises-in the condition in which they happen to be when leased, and that the landlord is not liable to the tenant for injuries-resulting from lack of repair unless he has contracted to repair, or unless the defect be a concealed one known to the landlord and not disclosed to the tenant and not discoverable by the use of that degree of care which the law demands; and it is equally welL settled that an employee,, servant, or subtenant of the tenant has no greater rights as against the landlord than the tenant himself. Cole v. McKey,. 66 Wis. 500. The rule is thus stated in Cowen v. Sunderland, 145 Mass. 363: “ Where there are concealed defects attended with danger to the occupant, and which a careful examination would not discover, known to the lessor, the latter 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 an action against the lessor if injury occurs.” The rule is also recognized and stated in 2 Wood, Landlord & T. § 381, and numerous cases are there cited in its support.

We think the allegations of the present complaint bring the case within the rule. The concealed defect was in the size of the grooves in the clamp which held the rope above the elevator. It is alleged to have been known to the landlord and not disclosed to the tenant, nor discoverable by him ■save upon particular inspection and examination. This we take to mean substantially taking the clamp off and examining the size of the groove, because it is evident that mere inspection from outside would not disclose the size of the groove, which was necessarily closed over the rope. We do not think that the rules of reasonable care go so far as to require the taking apart of machinery provided for such a purpose.

It is argued that the allegation to the effect that the elevator would not sustain the weight which was ordinarily cmd usually placed upon it, but would drop to the ground, and was thereby a nuisance, must be construed as meaning that the elevator fell whenever it was used, and hence that all who used it must have known of the defect. We do not regard this construction, however, as reasonable, especially in view of the fact that.it is alleged that the plaintiffs had no knowledge of the defect in the elevator or of the dangers in its use. The allegation evidently means that the elevator was liable to fall at any time in the course of the ordinary and necessary use thereof.

By the Oourt.— Orders affirmed.

EardeeN, J., took no part.