The general rule as to the liability, as between landlord and tenant, for injuries caused by the defective condition of the premises, is "that the tenant and not the landlord is liable to third persons for any accident or injury occasioned to them by the premises being in a dangerous condition." Thus, a servant, while employed in removing from a building articles manufactured by the lessees for his employer, stepped into an uncovered and unguarded hole in the floor of the premises from which the articles were to be removed, and was injured. No cover was ever made for the hole, and no scuttle had been constructed to cover it; but it was usually covered by a piece of plank. It was held that the hole could not be said to be a nuisance of itself. It was the duty of the occupier of the premises to protect against injury by the hole. The liability, therefore, was his,

and not that of the owner of the building."2

Walker, 64 Hun, 179, 18 N. Y. Supp. 915; Franke v. City of St. Louis, 110 Mo. 516, 19 S. W. 938; City of Denver v. Soloman, 2 Colo. App. 534, 31 Pac. 507; cases collected in Peil v. Reinhart, 12 Lawy. Rep. Ann. 843 (N. Y. App.) 27 N. E. 1077; Curtis v. Kiley, 153 Mass. 123, 26 N. E. 421.

61 Thus, in Cheetham v. Hampson, 4 Term R. 318, it was held that an action on the case, for not repairing fences, to the injury of plaintiff, can only be maintained against occupier, and not against the owner of the fee, who is not in possession. Underh. Torts, *p. 129, rule 22; Ahern v. Steele, 115 N. Y. 203, 22 N. E. 193 (collecting authorities); Sterger v. Van Sicklen, 132 N. Y. 499, 30 N. E. 987. Lessor of railroad is not liable for torts of lessee. Miller v. Railroad Co., 125 N. Y. 118, 26 N. E. 35. Landlord not liable for damage caused by want of ordinary repairs to privy vaults. Pope v. Boyle, 98 Mo. 527, 11 S. W. 1010. And see Texas & P. Ry. Co. v. Mangum, 68 Tex. 342, 4 S. W. 617, and Franke v. City of St. Louis, 110 Mo. 516, 19 S. W. 938. And, generally, see City of Chicago v. O'Brennan, 65 Ill. 160; Gridley v. City of Bloomington, 68 Ill. 47; City of Peoria v. Simpson, 110 Ill. 294; City of Lowell v. Spaulding, 4 Cush. (Mass.) 277; Brunswick-Balke Collender Co. v. Rees, 69 Wis. 442, 34 N. W. 732; Edwards v. Railway Co., 25 Hun, 197; Tayl. Landl. & Ten. § 539; 1 Atchinson, Torts, 197, 198.

62 Caldwell v. Slade, 156 Mass. 84, 30 N. E. 87. Cf. Dalay v. Savage, 145 Mass. 38, 12 N. E. 841; Adams v. Fletcher, 17 R. I. 137, 20 Atl. 263; City of Denver v. Soloman, 2 Colo. App. 534, 31 Pac. 507; Franke v. City of St. Louis, 110 Mo. 516, 19 S. W. 938; McGrath v. Walker, 64 Hun, 179, 18 N. Y. Supp. 915; cases collected 12 Lawy. Rep. Ann. 843. As to responsibility of landlord for tenant's negligence with respect to gas, see Holden v. Liverpool New Gas & Coke Co., 3 Man. G. & S. 1; Bartlett v. Boston Gaslight Co., 122 Mass. 209; Fisher v. Thirkell, 21 Mich. 1; Bigelow, Lead. Cas. 627 (and see notes).

Contract to Repair.

If, however, the landlord lets the premises with a covenant to repair, even if the tenant is to pay for them, the landlord is liable. Under such circumstances, workmen negligently left the entrance to the cellar in the public hall uncovered during the night, and the plaintiff fell into it and was injured. The landlord was held liable. 63 On the other hand, if a tenant covenants to keep the premises in repair, the landlord cannot be said to authorize the continuance of a nuisance; and not he, but the tenant, will be liable."* Letting Premises in Ruinous Condition or State of Nuisance-Authorizing Wrongs.

Moreover, if the landlord knowingly let the property in a condition of nuisance, he (and the tenant also) may be liable to third persons. 65 He is said to have authorized the continuance of the wrong

63 Leslie v. Pounds, 4 Taunt. 649; Nelson v. Liverpool Brewery Co., 2 C. P. Div. 311. Cf. Pretty v. Bickmore, L. R. 8 C. P. 401, with Gwinnell v. Eamer, L. R. 10 C. P. 658. But reservation of right to enter premises to repair the same does not attach liability to landlord. Clifford v. Atlantic Mills, 146 Mass. 47, 15 N. E. 84, per Holmes, J., in opinion of great ability, collating cases. But a decayed stairway in the rear of leased premises is not a nuisance to the occupant of an adjoining house, so as to make the lessor responsible, under his covenant to repair, for an injury sustained by such neighbor while walking on the stairway. Timlin v. Standard Oil Co., 126 N. Y. 514, 27 N. E. 786, distinguishing Sterger v. Van Siclen (Sup.) 7 N. Y. Supp. 805; Id., 132 N. Y. 499, 30 N. E. 987. The landlord is under no implied obligation to make ordinary repairs. Medary v. Cathers, 161 Pa. St. 87, 28 Atl. 1012; Hollingsworth v. Atkins, 46 La. Ann. 515, 15 South. 77.

64 Post, note 67. If the landlord undertakes to transmit power to adjacent buildings, he is liable for injury to an employé of one of the tenants by negligence in not keeping pulleys and shafts in safe condition, though the lease required tenant to keep shaft in repair. Poor v. Sears, 154 Mass. 539, 28 N. E. 1046; Pretty v. Bickmore, L. R. 8 C. P. 401. And see Gwinnell v. Eamer, L. R. 10 C. P. 658. Cases as to liability of landlord for the condition of a part of the premises not controlled by the tenant are collected at page 155, 23 Lawy. Rep. Ann. And see Jones v. Millsaps (Miss.) 14 South. 440.

65 Both the owner, who constructs an offensive cesspool, and the tenant, who uses the premises, are liable for injury to adjoining occupant. Joyce v. Martin, 15 R. I. 558. Both may be liable for negligence,-the landlord, for negligence in construction; the tenant, for negligence in use of such premLAW OF TORTS-15

67

66

only if he had notice of ruinous condition, and not then if the tenant is bound to repair. But where property is demised and at the time of the demise is not a nuisance, but becomes so only by the act of the tenant while in his possession, and the injury happens during such possession, the owner is not liable. But where the owner of the premises leases premises which are in a condition of nuisance, or must in their nature of things become so by their user, and receives rent, he is liable for the injury resulting from such nuisance. Thus, if landlord let premises with a stack of chimneys in a ruinous and fallen state, he is liable for damages; 70 but if he builds a chimney which by the act of the tenant becomes a nuisance, although the tenant could have built fires so that no nuisance would have resulted, the tenant is liable, and not the landlord." But where the demise was of a lime kiln and quarry, the landlord was held liable for the nuisance resulting from smoke from the kiln, as being the necessary consequence of an act he authorized.72 A fortiori, if the lessor of premises licenses the lessee to perform acts which amount to a nuisance, the lessor is liable.73

69

ises. Eakin v. Brown, 5 N. Y. 36; McDonough v. Gilman, 3 Allen (Mass.) 264; Todd v. Flight, 9 C. B. (N. S.) 377; Gandy v. Jubber, 5 Best & S. 485, 9 Best & S. 15; Rich v. Basterfield, 4 C. B. 783; Russell v. Shenton, 3 Q. B. 449; O'Connor v. Andrews, 81 Tex. 28, 16 S. W. 628.

66 Welfare v. London & B. Ry. Co., L. R. 4 Q. B. 693; Southcote v. Stanley, 1 Hurl. & N. 247; Slight v. Gutzlaff, 35 Wis. 675. But such knowledge may be constructive. Timlin v. Standard Oil Co., 126 N. Y. 514, 27 N. E. 786; Dickson v. Chicago, R. I. & P. R. Co., 71 Mo. 575.

67 Pretty v. Bickmore, L. R. 8 C. P. 401; Gwinnell v. Eamer, L. R. 10 C. P. 658. But see Ingwersen v. Rankin, 47 N. J. Law, 18.

68 Owings v. Jones, 9 Md. 108; Rich v. Basterfield, 4 C. B. 783. Et vide Saxby v. Manchester, S. & L. Ry. Co., L. R. 4 C. P. 198.

69 Roswell v. Prior, 12 Mod. 635; Godley v. Haggerty, 20 Pa. St. 387; Congreve v. Smith, 18 N. Y. 79; Clifford v. Dam, 81 N. Y. 52. Cf. Fisher v. Thirkell, 21 Mich. 1-20. Et vide Albert v. State, 66 Md. 325, 7 Atl. 697. The owner and the tenant may be jointly liable. Joyce v. Martin, 15 R. I. 558 (reviewing cases).

70 Todd v. Flight, 9 C. B. (N. S.) 377.

71 Rich v. Basterfield, 4 C. B. 783.

72 Harris v. James, 45 Law J. Q. B. 545.

78 White v. Jameson, L. R. 18 Eq. 303. And see Lufkin v. Zane, 157 Mass. 117, 31 N. E. 757.

Liability of Landlord to Tenant.74

An implied grant of whatever is necessary or beneficial to the thing granted has been recognized.75 Therefore a tenant may sue his landlord for granting to a third person permission to construct a chimney obstructing such tenant's window. The law does not, however, imply a warranty on the part of the landlord that the premises are fit for occupation or for the tenant's purposes." Therefore, in the absence of fraud or misrepresentation, a landlord is not responsible for injuries happening to his tenant by reason of a snowslide or avalanche.78 If the master agrees to make repairs, damage consequent on failure to perform the covenant may be actionable ex contractu.79 If damage result from negligence in making repairs under the agreement, recovery may be had ex delicto.80

74 Trover lies by landlord against tenant for value of wood into which trees wrongfully severed from the premises have been converted. Brooks v. Rogers, 101 Ala. 111, 13 South. 386. Where a tenant's negligence caused the destruction of the premises by fire, the landlord may sue on the contract, without being compelled to resort to an action on the case for negligence. Stevens v. Pantlind, 95 Mich. 145, 54 N. W.

75 Doyle v. Lord, 64 N. Y. 432; (collecting Massachusetts cases); Prop. 318, 319, 328-331.

716.

Case v. Minot, 158 Mass. 577, 33 N. E. 700
Tayl. Landl. & Ten. § 161; 2 Washb. Real

76 Case v. Minot, 158 Mass. 577, 33 N. E. 700.

77 Buckley v. Cunningham (Ala.) 15 South. 826; Baker v. Holtpzaffell, 4 Taunt. 45; Dutton v. Gerrish, 9 Cush. (Mass.) 89; Bowe v. Hunking, 135 Mass. 380; Naumberg v. Young, 44 N. J. Law, 341–345. The law has been changed by statute in Ohio and Indiana. 33 Am. Law Reg. 114, 115.

78 Doyle v. Railway Co., 147 U. S. 413, 13 Sup. Ct. 333; Booth v. Merriam, 155 Mass. 521, 30 N. E. 85. A landlord is not liable for a failure to disclose the existence of a defective drain, discovered by him during a tenancy at will, during which the tenant contracted typhoid fever and died. Bertie v. Flagg, 161 Mass. 504, 37 N. E. 572. Et vide Kern v. Myll, 94 Mich. 477, 54 N. W. 176. See Id., 80 Mich. 525, 45 N. W. 587. As to liability of landlord to tenant for damage done tenant's goods in consequence of repair to leased premises, see Toole v. Beckett, 67 Me. 544; Glickauf v. Maurer, 75 Ill. 289; Rosenfield v. Newman (Minn.) 60 N. W. 1085; Mumby v. Bowden, 25 Fla. 454, 6 South. 453. As to conversion between landlord and tenant, see post, p. 721, "Conversion."

79 Clapper v. Kells, 78 Hun, 34, 28 N. Y. Supp. 1018. The fact that the landlord, after the cellar had become flooded with filth and water, gratuitously undertook to remove the same, and did so negligently, does not entitle the tenant to abandon the premises. Blake v. Dick (Mont.) 38 Pac. 1072.

80 Callahan v. Loughran, 102 Cal. 476, 36 Pac. 835. As to liability of land

SAME-INDEPENDENT CONTRACTOR.

73. An independent contractor is one who undertakes to produce a given result without being in any way controlled as to the method by which he attains that result. He is distinguished from a servant, who, on the other hand, is under the orders and control of his master in respect to the means and methods used to attain the end for which he is employed.

It is of great importance to determine whether in a particular case there exists the relationship of master and servant (in its broadest sense), or of employer and independent contractor. "For purposes of liability, no man can have two masters." And so far as the defendant is concerned, the question may involve his entire responsibility for damages. If he can show that the harm was done by an independent contractor, in many, perhaps in most, cases he can escape liability.81

lord to tenant's servant, see Perez v. Raband, 76 Tex. 191, 13 S. W. 177; Trinity & S. Ry. Co. v. Lane, 79 Tex. 643, 15 S. W. 477, and 16 S. W. 18. As to tenant's guests, see Eyre v. Jordan, 111 Mo. 424, 19 S. W. 1095.

81 Singer Manuf'g Co. v. Rahn, 132 U. S. 518, 10 Sup. Ct. 175; Waters v. Pioneer Fuel Co., 52 Minn. 474, 55 N. W. 52; Sproul v. Hemmingway, 14 Pick. 1; Powell v. Virginia Const. Co., 88 Tenn. 692, 13 S. W. 691; Lawrence v. Shipman, 39 Conn. 586; Crenshaw v. Ullman, 113 Mo. 633, 20 S. W. 1077; Cuff v. Railroad Co., 35 N. J. Law, 17; Long v. Moon, 107 Mo. 334, 17 S. W. 810; Brannock v. Elmore, 114 Mo. 55, 21 S. W. 451; Scarborough v. Railway Co., 94 Ala. 497, 10 South. 316; Hawver v. Whalen, 49 Ohio St. 69, 29 N. E. 1049; Charlebois v. Gogebic & M. R. Co., 91 Mich. 59, 51 N. W. 812; City & Suburban Ry. Co. v. Moores (Md.) 30 Atl. 643; Harris v. McNamara, 97 Ala. 181, 12 South. 103; Savannah & W. R. Co. v. Phillips, 90 Ga. 829, 17 S. E. 82; Larson v. Metropolitan Ry. Co., 110 Mo. 234, 19 S. W. 416; Welsh v. Parrish, 148 Pa. St. 599, 24 Atl. 86; Haley v. Jump River Lumber Co., 81 Wis. 412, 51 N. W. 321, 956; New Albany Forge & Rolling Mill v. Cooper, 131 Ind. 363, 30 N. E. 294; Piette v. Bavarian Brewing Co., 91 Mich. 605, 52 N. W. 152; Alabama Midland Ry. Co. v. Martin, 100 Ala. 511, 14 South. 401. See dissenting opinion (Dwight, C.) in McCafferty v. Railway Co., 61 N. Y. 178. Sadler v. Henlock, 4 El. & Bl. 570-578; Rourke v. White Moss Colliery Co., 2 C. P. Div. 205. As to relation of a tenant, as an independent contractor, to his landlord, vide Rosowell v. Pryer, 12 Mod. 635; Cheetham