Rotte v. Meierjohan

*66 OPINION By THE COURT: The plaintiff and defendant were tenant and landlord. The plaintiff sued to recover damages on account of personal injuries received by him, as a direct result of the failure of defendant to perform his duty as a landlord. A verdict for the plaintiff was returned, and, on the defendant’s motion, the court rendered judgment in his favor notwithstanding the verdict. The reasons for the court’s action and the authorities upon which he relied were set forth in the opinion handed down at the time, from which we quote:— “The facts indicate that sometime prior to August 20, 1943, the defendants purchased an apartment building on Southern Avenue in Cincinnati and that at the time of the purchase the plaintiff and the members of his family occupied a third floor front apartment in the building under an oral month to month arrangement. No evidence was offered on behalf of the plaintiff to prove that the original owner, or the defendant as the subsequent landlord, retained any control over the premises rented to the plaintiff or agreed to make repairs on said premises. There was evidence .that on a few occasions a caretaker of the defendant, upon «request of the plaintiff, made minor plumbing and other repairs which, as stated, were not made under any agreement upon the part of the defendant, to make such repairs. The law is clear that in a case in which repairs are voluntarily made by the landlord, such fact is not an admission of liability on his part to make repairs generally and to keep the premises in repair. 36 C. J., p. 209. . We must now consider whether or not under the facts of this case and the law pertaining thereto the metal iron guard described in the petition was part of the premises leased to the plaintiff. If it was part of the leased premises there was no obligation on the part of the defendant to repair it. If it was not part of the leased premises and the defendant retained possession and control over it then it was his duty to exercise ordinary care to keep the same in a reasonably safe condition. The facts show that the building in question was an old fashioned, semi-obsolete type structure in which the front windows began near the ceiling and extended to within about seven inches from the floor. Before the defendant purchased the property a metal iron guard had been placed across the opening outside a window of the front room of the premises *67 occupied by the plaintiff, but the evidence does not show how. this guard was attached to the window or building, and the record is silent as to any arrangements made by the defendant to take care of or repair the guard. The record is equally silent as to any arrangement of the parties to have the guard included as a part of the leased premises. The evidence and exhibits do, however, show that there is no porch or other part of the building outside of the front windows of the plaintiff’s apartment which are used by the defendant or other tenants of the building, and it is reasonable to infer that the only purpose in constructing the iron guard was to prevent persons or articles within the plaintiff’s apartment from falling through the window and to protect those in the yard below from articles which might fall through the window in connection with the use of the apartment by the plaintiff and other tenants of that particular apartment. The iron guard, therefore, was an integral part of .the apartment leased to the plaintiff. The authorities clearly support this conclusion. The rule is stated in 36 C. J., p. 30, Sec. 632-2, as follows: ‘As a general rule everything which beongs to the demised premises or is used with, and appurtenant to, them and which is reasonably essential to their enjoyment passes, as an incident to them, unless specifically reserved.’ If the metal guard was part of the premises leased to the plaintiff the defendant, under the facts of this case, was not obligated to repair the same. In the absence of fraud or concealment by the lessor of the condition of the property at the date of the lease, there, is no implied warranty that the premises are tenantable or even reasonably suitable for occupation, and the rule of caveat emptor applied. 36 C. J., p. 43, Sec. 659-5; 24 O. Jur., 918.” ' For the reasons and upon the authorities set forth in the-quotation, we affirm the judgment. HILDEBRANT, PJ, and MATTHEWS, J, concur in opinion and judgment. ROSS, J., dissents in separate opinion.