Harrill v. Sinclair Refining Co.

Seawell, J. Without prejudice to the appellant, we may refrain from discussing any distinction in the reciprocal duties of the parties which might arise from the fact that plaintiff was a sub-tenant of Oates Motor Company; and may assume that the more direct relation of landlord and tenant existed between the parties ab initio. The common law applies in this jurisdiction on the general subject of repairs between landlord and tenant. Ordinarily, in the absence of an agreement relating to repairs or warranty relating to the condition of the property when leased, the lessee takes it in its then existing condition, and the landlord is under no obligation to restore or make repairs to premises where defects have been caused by decay or use, or which have arisen after the date of lease or occupancy, or which existed at the time of the demise. Duffy v. Hartsfield, 180 N. C., 151, 104 S. E., 139; Jordan v. Miller, 179 N. C., 73, 101 S. E., 550; Smithfield Improvement Co. v. Coley-Bardin, 156 N. C., 255, 72 S. E., 312; Gaither v. Hascall-Richards Steam Generator Co., 121 N. C., 384, 28 S. E., 546; 36 C. J., *425 p. 43, attention to Note 58; id., p. 125, s. 766 (D); id., p. 44; 32 Am. Jur., Landlord and Tenant, ss. 662, 657. In tbe ease before us it does not appear tbat tbe lessor contracted to make any repairs under any circumstances, and since tbe burden was upon upon tbe plaintiff to show otherwise, if necessary, it must be assumed tbat tbe contract is negative in tbat respect. However, even bad tbe lessor in his lease assumed tbe duty of making repairs, a breach of tbat duty would not ordinarily give rise to a cause of action in tort for personal injury to tbe lessee. Leavitt v. Rental Co., 222 N. C., 81, 82, 21 S. E. (2d), 890; see quotation from Jordan v. Miller, supra, on p. 82. Mercer v. Williams, 210 N. C., 456, 187 S. E., 556. Ordinarily, tbe doctrine of caveat empior applies to tbe lessee; Gaither v. Hascall-Richards Steam Generator Co., supra; Hudson v. Silk Co., 185 N. C., 342, 117 S. E., 165; Fields v. Ogburn, 178 N. C., 407, 100 S. E., 583. To avoid foreclosure under this doctrine in an action for tortious injury, be must show tbat there is a latent defect known to tbe lessor, or which be should have known, involving a menace or danger, and a defect of which tbe lessee was unaware or could not, by tbe exercise of ordinary diligence, discover, tbe concealment of which would be an act of bad faith on tbe part of tbe lessor. “If tbe landlord is without knowledge at tbe time of the letting of any dangerous defect in tbe premises, be is not responsible for any injuries which result from such defect.” Covington v. Masonic Temple Co., 176 Ky., 729, 197 S. E., 420. And be is not liable if be did not believe or suspect tbat there was any physical condition involving danger. Charlton v. Brunelle, 82 N. H., 100, 130 A., 216, 43 A. L. R., 1281. Plaintiff’s appeal poses tbe single question: Whether, under tbe facts of this case, tbe plaintiff has brought himself within tbe narrow exception to tbe general principles of law applicable to bis case, as above outlined. In considering tbat question, we should keep in mind tbat within these rules a latent defect refers to a physical defect and not a latent potentiality of injury from a patent physical condition, or to mere consequences unknown, unexpected or unpredictable to tbe parties. Such consequences are always latent until they develop, or crop out, in experience. Two rules are deducible from this distinction which deserve to be brought into tbe clear: First, to render tbe lessor liable for an injury on tbe theory of concealment, tbe latent defect which it is bis duty to disclose must be of such a nature as to give warning to an ordinarily prudent person tbat injury might result as a natural and probable consequence in tbe use of tbe demised premises; and second, where tbe sup *426 posed defect or defective condition itself is patent, and tbe parties have an equal opportunity of inspection, no liability in tort can be imputed to the lessor with respect to it. 36 C. J., p. 205, s. 875; 32 Am. Jur., Landlord and Tenant, s. 662, supra. It appears from the evidence that the wash door track and the brackets holding it were in plain sight of the plaintiff at the time the premises were sublet to him. In fact, for the year or more while he was in the employment of Oates Motor Company, he operated this door with apparent satisfaction and continued to do so after he took over the premises. He had, therefore, an equal opportunity with the defendant to observe the alleged defect, if any. In support of the theory of liability based on the failure of defendant to disclose a supposedly dangerous latent defect, the dernier resort for recovery in a ease of this kind, plaintiff stresses the testimony of Magness and Neal. But in speaking of the insufficiency of the brackets to prevent the track from spreading, it is conjectual whether they referred to normal operations, or the abnormal lateral strain placed upon the door and track by the breaking of a cable oil'one side, and the want of a counterbalance — a defect which, according to the evidence, developed long after the original construction and after plaintiff went into occupation of the premises. This, however, is not important to the result. Taking the evidence as a whole, and in the light most favorable to the plaintiff, it fails to bring home to the corporate defendant a knowledge, at the time of the lease, of any defective condition calculated to put it on notice that injury might at any time result from the use of the track. We can find no phase of the evidence upon which the plaintiff is entitled to recover. There is no evidence of any liability on the part of the defendant Bodie. The judgment dismissing the action as of nonsuit is Affirmed.