
    Minneker v. Gardiner.
    (Decided November 27, 1933.)
    
      Messrs. Powell & Starritt, for plaintiff in error.
    
      Miss Dorothy Karl and Mr. Silas E. Hurin, for defendant in error.
   Richards, J.

Ruth Minneker was injured on May 27, 1931, while employed as a clerk in a store in the city of Toledo, conducted by her mother on Collingwood avenue. She commenced an action against the defendant, Antoinette S. Gardiner, who was the owner and lessor of the premises, to recover damages for the injury which she suffered. After she had filed an amended petition, an answer was filed thereto, and a motion made by. the defendant for a judgment on the pleadings. The trial court granted the motion and rendered judgment for the defendant on the pleadings. This action of the trial court is assigned as error.

The answer denied some of the allegations of the amended petition, so that the motion in effect tests the sufficiency of that pleading to state a cause of action, with all of its averments undenied. From the material averments of that pleading it appears that Lena Minneker, the mother of plaintiff, leased the premises from the defendant by a written lease covering the period from October 18, 1927, to October 17, 1930. On October 1, 1930, she notified the owner that she would not hold over after the termination of her lease, but she continued to remain in possession as a tenant from month to month, and on May 27, 1931, was still so in possession. The plaintiff avers that on or about May 15, 1931, the defendant promised and agreed orally with Lena Minneker, the tenant, to repair the floor in the premises, and reserved the right to enter the premises for that purpose in consideration of the tenant remaining in the premises and continuing to rent the same. She avers that when injured she was assisting her mother, the lessee, in the operation of the business conducted on the premises, which was that of operating a confectionery store, and that while walking in the store she, by no fault of her own, fell through the flooring by reason of its rotten, worn and defective condition, which was well known to the defendant and unknown to her. She avers that by reason of said injury her leg was broken and the ligaments bruised.

Taking all of these averments to be true, the interesting question arises as to whether the landlord is liable for personal injuries suffered by tbe plaintiff, a daughter and employee of the tenant.

Able briefs have been furnished by counsel on both sides, which have been very helpful to’ the court.

We approach the solution of this question having in mind the legal principle that a lease is a conveyance of an interest in real property for a specified period or at will. Under such circumstances the rule is nearly universal that when there is no fraud or concealment by the landlord as to defects in the premises, known to him and unknown to the tenant, the rule of caveat emptor applies and the tenant takes the premises in whatever condition they are in. He would, therefore, assume all risk of personal injuries from defects in the premises.

This principle, however, does not completely dispose of a case where the landlord has made a valid contract to repair the premises, and fails to comply therewith. Certainly, in such case, the landlord remains liable for the breach of a valid contract to make repairs, but it does not follow that the measure of liability would include damages for personal injuries to the tenant, or a member of the tenant’s family, or an employee of the tenant. A quite similar case was considered and decided in Thompson v. Clemens, Jr., 96 Md., 196, 53 A., 919, 60 L. R. A., 580. That was a case in which the wife of a tenant sustained injuries in falling through the floor of a porch attached to a house rented by her husband from the defendant. It was alleged that the defendant had promised to maintain the premises in “good, safe and perfect condition,” and that the porch, on account of its defective condition, known to the defendant, which he had in consideration of further payment of rent promised to repair, but negligently failed to do, gave way, and plaintiff fell through the opening and sustained serious injuries. It was held that no action could be maintained by the tenant or one of his family against the landlord to recover damages for personal injuries thus caused, since the damages were too remote and not within the contemplation of the parties as the natural result of the breach of the contract.

Similar decisions have been rendered in many cases. A notable instance is the case of Davis v. Smith, 26 R. I., 129, 58 A., 630, 66 L. R. A., 478, 106 Am. St. Rep., 691, 3 Ann. Cas., 832, the syllabus of which reads as follows:

“A landlord who has agreed with his tenant to make repairs is not liable in tort to a member of his tenant’s family who has received personal injuries resulting from the landlord’s neglect to repair.”

Another case illustrating the rule is McGinn v. French, 107 Wis., 54, 82 N. W., 724.

The foregoing cases are only a few samples of a great many that could be cited to sustain the proposition asserted. A leading case is Jacobson v. Leaventhal, 128 Me., 424, 148 A., 281, also reported in 68 A. L. R., 1192, where it is followed by an elaborate annotation on the precise question now under consideration. The syllabus of the case reads as follows:

“Breach by a lessor of his agreement to make repairs does not render him liable for personal injuries due to the want of repair.”

In the annotation authorities are collected from the various states, and the majority rule announced as above stated. That rule shows that it is applicable to the instant case and that the landlord is not liable for personal injuries to the tenant, to a member of his family, or to a guest, customer or employee. In the case at bar the plaintiff was not only a member of the tenant’s family, but an employee, assisting in the conduct of the store, and thus presumably familiar with the conditions existing.

Thus far we have assumed that a valid contract existed binding the landlord to make the repairs. We think the averments of the amended petition do not show a consideration for the promise alleged to have been made by the landlord. The tenant was already in possession under lease from month to month, and whether the agreement related to the month within which it was made, or to a later month, it was refer* able to the possession already had by the tenant, and seemingly without any valid consideration. The case of Grace v. Williams, 36 Ohio App., 569, 173 N. E., 448, is consistent with this conclusion.

The trial court committed no error in rendering judgment on the pleadings, and that judgment will be affirmed.

Judgment affirmed.

Williams and Lloyd, JJ., concur.  