Robinson v. Thomas , 244 N.C. 732 ( 1956 )

94 S.E.2d 911 (1956) 244 N.C. 732

Hubert A. ROBINSON
v.
Ethel M. THOMAS and Charlotte Rental Co., Inc.

No. 244.

Supreme Court of North Carolina.

November 7, 1956.

Carpenter & Webb, by William B. Webb, Charlotte, for plaintiff-appellant.

Helms & Mulliss, Fred B. Helms, Wm. H. Bobbitt, Jr., Charlotte, for defendant Ethel M. Thomas, appellee.

Cochran, McCleneghan & Miller, by F. A. McCleneghan, Charlotte, for defendant Charlotte Rental Company, Inc., appellee.

HIGGINS, Justice.

The plaintiff abandoned his exceptive assignment to the order striking parts of the complaint by his failure to support the assignment by argument, reason, or authority. Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 544. The plaintiff offered evidence relating (1) to the stricken allegations of the complaint, (2) to other properties owned by the defendant, Mrs. Thomas, and (3) to the repairs made by the defendants after the plaintiff's injury. All the foregoing evidence was properly excluded.

Left for consideration is the sole question whether the evidence when considered in the light most favorable to the plaintiff, giving him the benefit of all permissible inferences which may be drawn from it, presents a case for the jury. If the evidence, when so considered, shows the defendants violated some legal duty they owed to the plaintiff and his injury and damage were the proximate result of that breach of duty, then he is entitled to have the jury pass upon his cause. Otherwise it ends here. Admittedly, there was no contract or guaranty the tenant would be safe in the leased premises. The law does not imply such a contract. The test of the landlord's liability is given in Harrill v. Sinclair Refining Co., 225 N.C. 421, 35 S.E.2d 240, 242:

"Ordinarily, the doctrine of caveat emptor applies to the lessee. Gaither v. Hascall-Richards Steam Generator Co., supra [121 N.C. 384, 28 S.E. 546]; Hudson v. Singleton 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, he must show that there is a latent defect known to the lessor, or which he should have known, involving a menace or danger, and a defect of which the lessee was unaware or could not, by the exercise of ordinary diligence, discover, the concealment of which would be an act of bad faith on the part of the lessor. `If the landlord is without knowledge, at the time of the letting of any dangerous defect in the premises, he is not responsible for any injuries which result from such defect.' Covington [Co.] v. Masonic Temple Co., 176 Ky. 729, 197 S.W. 420, 423, L.R.A.1918A, 436. And he is not liable if he did not believe or suspect that there was any physical condition involving danger. Charlton v. Brunelle, 82 N.H. 100, 130 A. 216, 43 A.L.R. 1281."

Ordinarily, the landlord is under no duty to make repairs. Moss v. Hicks, 240 N.C. 788, 83 S.E.2d 890. The owner is not liable for personal injury caused by failure to repair. Pleasants v. Barnes, 221 N.C. 173, 19 S.E.2d 627; Simons v. Lebrun, 219 N.C. 42, 12 S.E.2d 644; Tucker v. Park Yarn Mill Co., 194 N.C. 756, 140 S.E. 744. Even in case of a contract to repair, liability for personal injury resulting from a breach of the agreement is ordinarily not within the contemplation of the parties. Mercer v. Williams, 210 N.C. 456, 187 S.E. 556; Jordan v. Miller, 179 N.C. 73, 101 S.E. 550. Only in case of repairs negligently made is there liability. Fields v. Ogburn, 178 N.C. 407, 100 S.E. 583.

The plaintiff seeks to exclude himself from the application of the foregoing rules by alleging the defendants knew of latent and dangerous defects in the construction and maintenance of the porch floor and wrongfully concealed them from the plaintiff. There is no evidence in the record that Mrs. Thomas had any actual or constructive knowledge that the apartment was inherently dangerous, either by reason of construction or maintenance. In fact, there is no evidence she had ever seen the apartment. The only evidence in the record relating to her knowledge of the apartment was the testimony of the plaintiff that Mr. Drake told him he had complained to Mrs. Thomas about the cracks in the porch floor and that she replied she did not intend to spend any more money on the property. That was almost two years before the plaintiff's injury. The plaintiff's wife complained to Mr. Drake that the cracks in the floor were unsightly. There was no complaint that the condition was dangerous. In fact, the plaintiff's own testimony shows lack of apparent danger: "From the time I moved into the apartment until immediately before my fall, the porch was firm."

There is no evidence the corporate defendant had knowledge the porch was insecure. That two cracks had developed, yes. The larger one had been there for more than two years and the shorter one for the greater part of that time. Actually, there is no evidence that the break was along the line of either of these cracks. The inference is at least as strong the break occurred at the place where the depression in the floor had recently developed. The space under the floor was enclosed by masonry walls built 23 years before Mrs. Thomas became the owner and before the Charlotte Rental Company became agent. The cause of the breakthrough was the deterioration of the sleepers under the floor after 31 years use.

Finally, the plaintiff argues the defendants should be held liable because Mr. Drake told the plaintiff to go ahead and use the porch pending repairs. The floor was then firm. Mr. Drake seldom saw it. The plaintiff knew that. The plaintiff knew that he was in a much better position to know about the condition than Mr. Drake was. What Mr. Drake said was nothing more than the expression of his opinion. It is difficult to see how the statement could have been understood otherwise. After all, there is no evidence that any person had known of the vacant space since the day the builder sealed it up, and that was in 1923. The plaintiff's evidence shows the defendants knew of the two cracks in the floor. It fails to show anything else.

The judgment of the Superior Court of Mecklenburg County is

Affirmed.

JOHNSON, J., not sitting.