Livingston v. Essex Investment Co.

219 N.C. 416

• Court: Supreme Court of North Carolina
• Decided: April 30, 1941
• Status: Published

Opinions

ClabicsoN, J.

At the close of plaintiff’s evidence and at the close of all the evidence, the defendant in the court below made motions for judgment as in case of nonsuit. C. S., 567. The court below overruled these motions and in this we can see no error.

This action is brought by plaintiff, a tenant, against the defendant, the landlord, for actionable negligence.

It is well settled in this jurisdiction, as was said in Salter v. Gordon, 200 N. C., 381 (382) : “In the absence of an agreement as to repairs the landlord is not obligated to keep the building in repair for the benefit of his tenant. Improvement Co. v. Coley-Bardin, 156 N. C., 255; Fields v. Ogburn, 178 N. C., 407; Tucker v. Yarn Mill Co., 194 N. C., 756.” Williams v. Strauss, 210 N. C., 200 (201).

In Mercer v. Williams, 210 N. C., 456 (458-9), the rule is again stated: “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 premise, unless there be a contract to repair which the landlord undertakes to fulfill and does his work negligently to the injury of the tenant. Fields v. Ogburn, supra (178 N. C., 407) ; Colvin v. Beals, 187 Mass., 250.”

In the Fields case, supra, Hoke, J., goes into the subject with thoroughness, citing a wealth of authorities, and says at p. 408: “In the absence of express stipulation on the subject, there is usually no obligation or assurance on the part of the landlord to his tenant that the premises will be kept in repair, or that the same are fit or suitable for the purposes for which they are rented. It is true that in the case of latent defects of a kind that import menace of appreciable injury when these are known to the landlord, and of which tenant is ignorant and not likely to discover on reasonably careful inspection, liability has been recognized and recoveries sustained both, on the ground of negligent breach of duty, and at times for fraud and deceit. ... In Colvin v. Beals, 187 Mass. 250 (252), injury from a defective railing^ón a piazza, recovery was denied, the Court stating the general position applicable, as follows : ‘The general rule in this commonwealth must be considered as settled, that a tenant cannot recover against his landlord for personal injuries occasioned by defective condition of the premises let, unless the landlord promises to repair, makes the repairs, and was negligent in making them.”’ Miles v. Janvrim,, 196 Mass., 431 (439).

The judge in the court below charged the jury correctly, to which no exception was taken, as follows: “Now, gentlemen of the jury, the court instructs you, as a matter of law, the general rule is: ‘That the landlord, that is, the defendant in this case is not liable to the tenant for personal injury (and “tenant” includes his family and wife), the landlord is not liable to the plaintiff for injuries from the demised premises, that is, the defendant, as a general rule of law, would not be liable to the plaintiff for any personal injury sustained by reason of any defective condition there around the premises, but if there is a contract to repair and the landlord undertakes to fulfill the contract and does the work negligently to the injury of the plaintiff, in that case, gentlemen of the jury, the landlord would be liable.’ ”

In the present action there was an express stipulation between the landlord and the tenant to repair. In the lease is the following: “The lessor agrees to keep the building in repair during the said term except as against injuries thereto not due to natural causes.”

O. E. Livingston, the husband of plaintiff, testified — unobjected to: “I made a contract with Mr. (Edward R.) Sutherland for the lease of a house, part of which was in writing and part verbal. Mr. Sutherland made or agreed to have the steps repaired.” Mr. Sutherland signed the lease as agent of the defendant, Essex Investment Company, to make repair. The agency of Mr. Sutherland is in no way denied.

It will be noted that defendant did not demur, but answered the complaint.

In Ricks v. Brooks, 179 N. C., 204 (209), it is stated: “This ease has been tried upon its merits, and the plaintiff has won upon the facts. Defendant showed by his answer that he understood the cause of action, and has actually supplied the omission, if any, in the complaint. If he found it too meager in its allegations, he had a remedy by asking that it be made more definite and certain by amendment. Rev., 496; Blackmore v. Winders, 144 N. C., 212; Allen v. R. R., 120 N. C., 548; Conley v. R. R., 109 N. C., 692; Oyster v. Mining Co., 140 N. C., 135. Instead of availing himself of the several remedies above mentioned, the plaintiff trusted his case to the jury upon the issue, and having had a fair chance to present it, bis motion does not commend itself to our favorable consideration.”

N. 0. Code, 1939 (Micbie), sec. 537 (former Rev., 496), is as follows: “If irrelevant or redundant matter is inserted in a pleading, it may be stricken out on motion of any person aggrieved thereby, but this motion must be made before answer or demurrer, or before an extension of time to plead is granted. When the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment.”

The plaintiff’s evidence on the trial was substantially the allegations set forth in the complaint, the defendant’s evidence was to the contrary. The issues submitted to the jury were in accordance with the complaint and answer. Defendant neither objected to the issues nor submitted other issues. The case in the court below was tried out on the allegations and denials in the complaint and answer. If the defendant desired more specific and detailed allegations in the complaint as to the charge of negligence, it should have requested the complaint to be made more definite and certain under the statute supra, or requested a bill of particulars under section 534, supra. Having answered, the matter is waived.

In Allen v. R. R., 120 N. C., 548, it is held: “Where a complaint in an action for negligence was defective in not definitely and sufficiently setting out the negligence complained of, objection thereto should have been taken, not by demurrer, but by motion to have the plaintiff make his complaint more definite.” Bowling v. Bank, 209 N. C., 463.

If the landlord, having agreed with its tenant to repair the brick steps on the demised premises leading to the dwelling, undertakes to repair said steps through its agent and employees, who do the work in a negligent and careless manner, as a proximate result of which the tenant’s wife sustains physical injuries, is the landlord liable in damages? We think so, under the facts and circumstances of this case.

In 16 R. 0. L., sec. 565, p. 1045, citing a wealth of authorities, is the following: “It is the generally accepted rule that whether there is a covenant to repair or not, the lessor will be liable for injuries caused by his negligence or unskillfulness or that of his servants and employees in making repairs to the leased premises, and it has been held that a landlord undertaking to repair leased premises at the request of his tenant, when under no obligation so to do, and who assures his tenant that such repairs have been made, is answerable to the tenant if the latter, relying on such assurance, suffers injury by reason of the defects not being properly repaired. . . . (p. 1046). But if the landlord voluntarily repairs and actually enters upon the carrying out of his scheme of repair, he will be responsible for the want of due care in the execution of the work, upon the principle of liability for negligence, without reference to any question of implied contract to repair, or implied consideration. Even in those jurisdictions where it is held that a tenant cannot sustain an action of tort for personal injuries received by him because of the breach of the landlord’s covenant to keep the premises in repair, if the landlord malees the repairs in accordance with the agreement, and is negligent in making them, the tenant may recover for resulting personal injuries(Italics ours.) Miles v. Janvrin, supra.

The same rule is set forth in 32 American Jurisprudence, “Landlord and Tenant,” sec. 724, p. 599, citing a wealth of authorities. In section 741, pp. 618-19, the rule is thus stated: “It is a well-established principle that one cannot relieve himself of the consequence of neglect in the performance of his agreement by employing an independent contractor to do the work, and the courts generally agree that a landlord who undertakes to make repairs or improvements for the benefit of his tenant, whether he is obligated by law or by agreement with the tenant to do so, or whether he does so gratuitously, cannot relieve himself from his liability for negligence in making such repairs or improvements by employing an independent contractor to do the work; if he does employ an independent contractor who does the work so negligently as to cause injury thereby, the landlord is liable to the same extent as if he had done the work himself. The landlord in making repairs and improvements on the demised premises owes a duty of reasonable care to the occupying tenant which he cannot escape by placing the work with an independent contractor, especially if the work to be done is attended with danger to the tenant. The rule extends in favor of members of the tenant’s family and his guests and invitees, — those to whom the landlord owes the same duty of care and protection from negligent injury as he does to the tenant.”

The defendant contends that he “had discharged his liability in employing a competent person to do the work, whether that competent person served as his servant, agent or as an independent contractor.” We cannot so hold.

In Doyle v. Franek, 118 N. W. (Neb.), 468 (469), a landlord undertook to move a dwelling occupied by the plaintiff and removed the front steps which were immediately replaced but in a negligent manner resulting in injuries to the plaintiff, and the Court said: “The defendant argues that because the steps were removed and replaced by an independent contractor, or without any direction from or knowledge of the defendant, he is thereby relieved from liability. It is urged the negligence complained of was not the neglect of the defendant, but that of an independent contractor. We do not think this contention is sound. Conceding that the relation of landlord and tenant existed between the parties to this action, we think it is clear that the landlord is not relieved of liability for injury to bis tenant by tbe fact tbat be employed an independent contractor to perform tbe work of moving tbe bouse. So long as tbe relation of landlord and tenant existed between tbe parties, tbe landlord owed a duty to tbe defendant not to do, or cause to be done, anything wbicb would render tbe premises dangerous and unsafe for bis tenant. Where one owes an absolute duty to another, be cannot acquit himself of liability by delegating tbat duty to an independent contractor (citing authorities). In Peerless Mfg. Co. v. Bagley, 126 Mich., 229, 53 L. R. A., 287, it was held: ‘Where a landlord undertakes to make repairs or improvements for bis tenant, be cannot relieve himself of tbe consequences of neglect in tbe performance of bis agreement by employing an independent contractor.’ ”

Tbe rule as set out in Restatement of tbe Law of Torts, sec. 420, p. 1135 : “A lessor of land who employs an independent contractor to make repairs wbicb tbe lessor is under no duty to make, is subject to tbe same liability to tbe lessee and others upon tbe land with tbe consent of tbe lessee for bodily barm caused by tbe contractor’s negligence in making or purporting to make tbe repairs as though tbe contractor’s conduct were tbat of tbe lessor.”

In Vollrath v. Stevens (Mo.), 202 S. W., 283, a carpenter was engaged by a landlord to repair steps on leased premises and tbe following was stated by the Court, at p. 286, par. 14: “Tbe evidence shows tbat when plaintiff complained of tbe defective condition of tbe premises in 1909, defendant’s agent sent a carpenter to make tbe repairs and defendant says tbat, as tbe carpenter furnished bis own materials and used bis own methods in doing tbe job, be was an independent contractor, and for tbat reason, if tbe result of his work was tbat the repairs were not properly made, tbe defendant is not liable. This contention of tbe defendant is not well taken. If tbe lessor undertakes to have repairs made when be has not covenanted to do so, a duty is cast upon him to see tbat tbe repairs are made so as not to injure tbe tenant, and tbe rule concerning independent contractors has no application.” Blake v. Fox, 17 N. Y. Supp., 508.

W. R. Douglas testified, in part: “I know where tbe Livingston bouse is and did some work out there. I started tbe work November 24, 1937, and finished it tbe 4th day of December, 1937. Mr. Sutherland bad me to do tbe work. I did tbe work by tbe hour. . . . Mr. Sutherland took me out there and showed me what repairs be wanted and we went back afterwards and be said we should paint tbe entire outside. . . . I examined tbe steps briefly and Mr. Sutherland was with me and we decided there was nothing sufficient to warrant any work being done on them. . . . Mr. Sutherland engaged me to go out there and do tbe repairs. Mr. Sutherland was probably out there a couple of times during tbe process of tbe work.” Tbe foregoing constitutes all of tbe testimony of tbe witness, W. R. Douglas, as to tbe contract. Tbe witness, E. R. Sutherland, did not attempt to testify as to tbe terms of bis contract witb W. R. Douglas. Tbe only testimony from bim relative to that is as follows: “In dealing witb Mr. Douglas I did not retain any control over tbe method be used.”

In Aderholt v. Condon, 189 N. C., 748 (755), we find: “Tbe test of independence and agency or servant is laid down in 14 R. C. L., pp. 67-8, as follows: 'The vital test in determining whether a person employed to do certain work is an independent contractor or a mere servant is tbe control over tbe work which is reserved by tbe employer. Stated as a general proposition, if the contractor is under tbe control of tbe employer, be is a servant; if not under such control, be is an independent contractor.’ ” Greer v. Construction Co., 190 N. C., 632 (637).

In Rosenberg v. Zeitchik, 101 N. Y. Suppl., 591 (592), we find: “Under tbe circumstances of this case, it was tbe duty of tbe landlord to make tbe repairs, and tbe fact that be made a contract witb someone to do tbe work does not relieve bim from liability for negligence to bis tenant.”

Tbe work that Sutherland, tbe agent of tbe defendant, employed Douglas to do, was in tbe relation of master and servant. He was not an independent contractor. Tbe principle is well settled: Qui facit per alium facit per se. He who acts through another acts himself — i.e., tbe acts of an agent are tbe acts of tbe principal. Broom, Max., 818, et seep; 1 Bl. Comm., 429.; Story, Ag., sec. 440. Ve see no good reason why a landlord should be an exception to tbe ordinary rule of master and servant. We can find nowhere in tbe pleadings or evidence in tbe court below where defendant contended that Douglas was an independent contractor. Defendant’s defense was: (1) Denial that tbe defendant made an agreement to repair tbe steps, that tbe defendant did not employ Douglas or anyone else to repair tbe steps, and that tbe steps were not repaired at all. (2) That tbe plaintiff was guilty of contributory negligence.

Counsel for defendant tendered no issue relating to tbe principle of independent contractor, did not except to tbe issues submitted by tbe court, did not ask for any special instruction relating to tbe principle of independent contractor, made no contention that this relationship existed, and at tbe close of tbe judge’s charge, after be bad stated all of tbe contentions of tbe parties without embracing in such contentions for tbe defendant any reference to tbe doctrine of independent contractor, tbe court directed this question to counsel for all parties: “Is there any other evidence or any other contentions to which you wish to call tbe court’s attention, gentlemen (of counsel) ?” To this question, counsel for tbe defendant made no answer.

It is well settled, as stated in McIntosh Prac. and Proc., at pp. 803-4: “When the case has been tried below on a certain theory, it must be heard on appeal upon the same theory, and the party will not be allowed to change his ground between the lower court and the appellate court. The erroneous admission of a proposition of law in the lower court will not be binding, but the appellate court has respect to the theory upon which the case was tried. Any other course would be unjust to the judge who tried the case and to the appellee, and the party, having-selected the ground upon which he chooses to fight, should not be allowed to have another chance, after losing, by shifting his ground. When the case was tried upon the theory of a tort, or upon a certain theory of damages, the appellate court will not determine it upon a different theory which might have been adopted.”

The plaintiff’s evidence as to defendant’s duty to repair the steps on which plaintiff was injured, was denied by defendant. This was a question for the jury. All the evidence was to the effect that Sutherland was the agent of defendant. He had the authority to make the contract with the plaintiff for repairing the steps and signed the contract for defendant. The witness Hollingsworth testified, in part, for plaintiff: “I am a mechanic, carpenter and bricklayer. ... 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. I replaced the bricks myself. Mr. Livingston asked me if I could fix them and I said ‘Yes,’ and went out there and cleaned them off and put them back with cement. The material I found between the brick was lime and sand because I cleaned them off without any trouble. No cement. I have done work laying brick. The brick sloped over at least an inch over the foundation that the brick was laid on.” This evidence was not objected to by defendant and was permissible under plaintiff’s complaint. The court below charged so carefully and accurately the law applicable to the facts that defendant made no exception to same. If the defendant in a proper prayer for instruction did not request the court below to charge subordinate features of the case, it is now too late for defendant to complain.

In Peterson v. McManus, 210 N. C., 822 (823), the law is thus stated: “If they desire special instructions upon any phase of the law involved, not given in the general charge, they should have filed written request therefor. Harris v. Turner, 179 N. C., 322 (325), and cases there cited.”

From a careful review of the record and the able briefs of the parties, the exceptions and assignments of error made by defendant cannot be sustained. We can see on the record no prejudicial or reversible error.

No error.