Citizens' Savings Bank v. Boswell, &c. fendant. (B) The Court instructs the jury that if they believe from the evidence that the defendant the Citizens' Savings Bank, through its president, W. F. Paxton, or cashier, R. Rudy, remitted the $6,000 to the Merchants' National Bank, of Cincinnati, Ohio, relying upon the telegram exhibited in evidence, instead of being misled into remitting it by reason of the mistake referred to in the other instruction herein, then they cannot find for defendant on account of such mistake." Counsel for appellant contends that instruction A is erroneous, because it virtually required appellant to look at the record of Graves circuit court, when this court held in its former opinion that this was not necessary, and for the further reason that reasonable diligence was not defined by the court. We do not think this instruction is susceptible of the construction placed upon it by counsel for appellant. The record of the Graves circuit court is not referred to in the instruction or in the evidence. The evidence did show, however, that the business with the bank. was first carried on in the name of the O'Dell Commission Company. The same person who was manager of that company then notified the bank that the O'Dell Commission Company had quit business, and that the business formerly conducted by that company would in future be carried on by the O'Dell Company. The bank knew that the same person was manager of both companies. Its officers were acquainted with the local representatives, who were the same for each concern. These were the facts and circumstances which the court told the jury to consider in determining whether or not appellant was misled by the mistake in name, and under this state of the record we are unable to see how the jury could Citizens' Savings Bank v. Boswell, &c. have reached a different conclusion. Though the instruction is subject to criticism, we do not think it was calculated to prejudice, or did prejudice, the substantial rights of the appellant. Instruction B is assailed on the ground that it singles out and gives undue prominence to a portion of the evidence. The evidence singled out, however, had no place in the case, and should not have been considered by the jury in determining the good faith of appellant. The effect of the instruction given was the same as if the court had peremptorily instructed the jury to disregard evidence that was not admissible, and appellant has no just cause of complaint that such testimony was eliminated from the consideration of the jury. Perceiving no substantial error in the record, judgment is affirmed. Holzhauer v. Sheeny. CASE 5.-ACTION BY BESSIE SHEENY BY NEXT FRIEND AGAINST AMELIA HOLZHAUER FOR DAMAGES IN USING DEFECTIVE LEASED PREMISES.-October 31. Holzhauer v. Sheeny Appeal from Campbell Circuit Court. A. S. BERRY, Circuit Judge. Judgment for plaintiff, defendant appeals-Reversed. 1. Principal and Agent-Notice to Agent-Landlord and Tenant -Defective Premises—Injuries to Tenants.-Knowledge of an agent of defects in leased premises is knowledge of the landlord, so far as affects the latter's liability for injuries from such defects. 2. Landlord and Tenant-Defective Premises Injury to Tenant -Liability of Landlord.-While the rules of caveat emptor applies to a contract of letting, and there is no implied covenant on the part of the landlord that the premises are fit for the purposes for which they are rented, or that they are in any particular condition, yet if the landlord, with knowledge that the premises are defective or dangercus and that such defect is not discoverable by the tenant by the use of ordinary care, rents such premises, concealing such knowledge, he is liable to the tenant for injuries sustained therefrom. 3.Same.-A landlord's failure to notify his tenant of defects in the premises does not render him liable for injuries therefrom, where the landlord does not acquire such knowledge until after the lease is made. 4. Evidence Competency-Telephone Conversation.-A witness who is familiar with the voice of a person with whom he converses over the telephone may testify to admissions made in the conversation. e-Identity of Person Making Admission-Evidence-Sufency.-Evidence examined, and held sufficient to prove the Holzhauer v. Sheeny. identity of the person with whom witness testified he had a conversation by telephone. 6. Landlord and Tenant-Defective Premises Injury, to Tenant -Action-Evidence.-In an action against a landlord for personal injuries resulting from defective premises, evidence of admissions by defendant's agent, tending to show knowl edge by him of the defective condition prior to the time of the injury, was inadmissible, in the absence of evidence that the agent had such knowledge prior to the time of renting. 7. Evidence-Admissions by Agent-Authority of Agent.Admissions or statements of an agent, which, had they been made by the principal, could have been proved without being subject to the rule against hearsay evidence, can not be proved against his principal, unless they form a part of the res gestae. 8. Continuance Grounds-Absence of Witness.--Civil Code Prac., section 554, allows the deposition of witness who is a practicing physician to be read, etc. Section 556 provides that, on an affidavit of a party that the testimony of a witness is important, etc., a court may in its discretion order the personal attendance of the witness to be coerced, although such witness may otherwise be exempt from personal attendance. Held, That the absence of a physician who had been subpoenaed as a witness was not ground for a continuance, where the party who subpoenaed him did not obtain an order of court for his personal attendance. 9. Same.-Civil Code Prac., section 315, provides that an affidavit for a continuance may be read as a deposition of an absent witness who has been summoned to appear, but who fails so to do, does not apply to witnesses whose appearance can not be coerced. SAM E. ANDERSON, attorney for appellant. 1. The primary proposition of law is that the landlord is only liable, if, at the time she rented to the appellee, she knew the timbers upholding the floor were rotten, defective and dangerous, and suppressed her knowledge of its condition. 2. The petition is fatally defective in that it fails to state that defendant knew at the time of the demise that the timbers of the floor were rotten. Knowledge acquired after the demise does not raise any duty to repair, and therefore raises no liability for damages to the lessor. Holzhauer v. Sheeny. AUTHORITIES CITED. Coke v. Gutkese, 80 Ky., 598; Franklin v. Tracy, 25 Ky. Law Rep., 1409; Doyle v. The Union Pacific R. R. Co., 147 U. S., 413; Hughes v. Cin., etc., R. R. Co., 91 Ky., 531; Louisville, etc., R. R. Co. v. Ellis' Admr., 97 Ky., 343; McLeod, Receiver, v. Ginther's Admr., 80 Ky., 399; East Tenn. Tel. Co. v. Simon's Admr., 99 Ky., 410; Roberts v. Burks, 16 Ky., 411; Reed v. Brooks, 13 Ky., 128. A. M. CALDWELL, attorney for appellee. We submit that upon this trial the appellee established three important facts: 1. That the closet which fell through with the appellee was rotten and utterly unsafe and unfit for use. 2. That the plaintiff, appellee, was seriously and painfully injured without the slightest fault on her part. 3. That appellant by her own confession and admission knew the condition of the closet before plaintiff was injured, and negligently failed to have it repaired or to give warning of its dangerous condition to her tenant the plaintiff, or any member of her family. Considering the agony and distress of mind the plaintiff endured while suspended perpendicularly, head downward, into this vault, 12 feet in depth, looking death squarely in the face, until her mother, hearing her cries, came to her rescue, we insist that a verdict of $500 is not unreasonable. OPINION OF THE COURT BY CHIEF JUSTICE O'REARReversing. Appellant leased a tenement to the father of the infant appellee for the residence of his family. While using a privy closet on the premises, a defective seat, made insecure by rotting planks on which it rested, gave way with the infant appellee, precipitating her into the vault, and injuring her. In this suit by her prosecuted by her next friend, against the landlord for damages, there resulted a verdict and judgment in her favor. On the appeal, prosecuted by the land |