Mercer v. . Williams

Stacy, C. J. In view of the trial theory of the case, which is controlling on appeal (In re Parker, 209 N. C., 693, 184 S. E., 532), it is not perceived, upon the allegations presently appearing, how the defendants can be held liable for plaintiff’s intestate’s death, unfortunate and distressing as it was. The allegation of negligent failure to repair the demised premises, in breach of a covenant to do so, is not made out. Improvement Co. v. Coley-Bardin, 156 N. C., 255, 72 S. E., 312. Nor is it established by the evidence that the defendants negligently omitted to give notice of known or latent defects. Gaither v. Generator Co., 121 N. C., 384, 28 S. E., 546. The plaintiff relies upon the unusuality of the situation and concedes that the general rule of liability as between landlord and tenant is not so favorable to a recovery. Hudson v. Silk Co., 185 N. C., 342, 117 S. E., 165. Indeed, the cases of Tucker v. Yarn Mill, 194 N. C., 756, 140 S. E., 744, and Fields v. Ogburn, 178 N. C., 407, 100 S. E., 583, would seem to be sufficiently in point and illustrative of the principles involved to preclude a disturbance of the judgment of nonsuit. At the common law, which obtains in this jurisdiction, a lessor is under no implied covenant to repair, or to keep in repair, the demised premises. Improvement Co. v. Coley-Bardin, supra. And even with an express agreement to repair, liability for personal injuries to the tenant, his family, servants, or guests, sustained by reason of its breach, is ordinarily held to be beyond the terms of such agreement and not within the contemplation of the parties. Jordan v. Miller, 179 N. C., 73, 101 S. E., 550. Damages arising from such injuries are usually regarded as too remote, whether the action against the landlord be in contract or in tort. 16 R. C. L., 1095. The general rule is, that a *459 landlord is not liable to bis 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; Colvin v. Beals, 187 Mass., 250. The facts alleged and shown are not sufficient to take the case out of the general rule, hence on the record as presented, we are of opinion the judgment of nonsuit was properly entered. Affirmed.