Cowen v. Sunderland

• Decision Date: 23 November 1887
• Citation: 145 Mass. 363,14 N.E. 117
• Parties: COWEN v. SUNDERLAND.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 363

14 N.E. 117

COWEN v. SUNDERLAND.

Supreme Judicial Court of Massachusetts, Norfolk.

November 23, 1887

COUNSEL

J.E. Cotter and C.F. Jenney, for plaintiff.

There was evidence for the jury that the defendant knew that said cesspool was unsafe, dangerous, and improperly covered. The defendant is liable for the injury caused to the plaintiff by defendant's acts, as it might "reasonably be contemplated as likely to result," and did in fact result, from such acts. Wellington v. Oil Co., 104 Mass. 64; Reichenbacher v. Pahmeyer, 8 Bradw. 217; Scott v. Simons, 54 N.H. 426; Godley v Hagerty, 20 Pa.St. 397; Minor v. Sharon, 112 Mass. 477; Cesar v. Karutz, 60 N.Y. 229; Bowe v Hunking, 135 Mass. 380. Scott v. Simons, ubi supra, is directly in point.

Gorely & Bartlett, for defendant.

The evidence shows that even if there was a defect in the covering of the cesspool, as contended by the plaintiff, at the time of the accident, there was no such defect before that time, and that the cesspool cover was entire, and the plaintiff had walked over it "many times" during the four months immediately preceding. The evidence further shows that the defendant had taken pains to put it in proper repair before letting the tenement to the plaintiff. Therefore the defect, if any, arose from ordinary wear and tear, for which the defendant is not liable. Gott v Gandy, 2 El. & Bl. 845, 75 E.C.L. 845, 18 Jur. 310; Dutton v. Gerrish, 9 Cush. 89; Foster v. Peyser, Id. 242; Welles v. Castles, 3 Gray, 323; Leavitt v. Fletcher, 10 Allen, 121. Unless some fraud or deceit was practiced upon the plaintiff by the defendant, or something was willfully concealed by the defendant that she was bound in law to reveal to the plaintiff, the above rule of the law is not changed. But a landlord cannot be held liable in damages for fraud or deceit practiced on his tenant, unless it is specifically pleaded and proved, and the plaintiff must give some affirmative evidence of negligence on the part of the defendant. Hammack v White, 11 C.B. (N.S.) 588, 8 Jur. (N.S.) 796, 31 Law J. 129. No allegation of fraud or deceit on the part of the defendant is made in this case, and the evidence does not show that any fraud or deceit was practiced on the plaintiff. The alleged defect, even if it had existed at the time of the hiring by the plaintiff, the defendant was not bound, as a matter of law, to reveal to the plaintiff, because there is no evidence that the defendant knew of it, and the defect, whatever it might have been, could have been discovered by investigation and examination by the plaintiff, which it was her duty to attend to; and if she took the premises, as the evidence shows she did, without such investigation and examination, she took them as they were, and the rule of caveat emptor applies. McGlashan v. Tallmadge, 37 Barb. 313; Welles v. Castles, 3 Gray, 323; Woods v. Cotton Co., 134 Mass. 359; Hazlett v. Powell, 30 Pa.St. 293.

OPINION

DEVENS J.

It is a general rule, well established by the decisions of this court, that the lessee takes an estate in the premises hired and takes the risk of the quality of the premises, in the absence of an express or implied warranty by the lessor or of deceit. If, therefore, he is injured by reason of the unsafe condition of the premises hired, he cannot, ordinarily, maintain an action in the absence of such warranty or of misrepresentation. The rule of caveat emptor applies, and it is for the lessee to make the examination necessary to determine whether the premises he leases are safe, and adapted to the purposes for which they are hired. There is an exception to this general rule, arising from the duty which the lessor owes the lessee. This duty does not originate directly from the contract, but from the relation of the parties, and is imposed by law. Where there are concealed defects attended with danger to an occupant, and which a careful examination would not discover, known to the lessor, the latter is bound to reveal them, in order that the lessee may guard against them. While the failure to reveal such facts may not be actual fraud or misrepresentation, it is such negligence as may lay the foundation of an action against the lessor, if injury occurs. The principle that one who delivers an article, which he knows to be dangerous, to another, ignorant of its qualities, without notice of its nature or qualities, is liable for any injury reasonably likely to result, and which does result, has been applied to the letting of tenements. It has thus been held that where one lets premises infected with the small-pox, and injury occurred thereby, he was liable if, knowing this danger, he omitted to inform the lessee; this, upon the ground of his negligent failure to perform a duty which he owed the lessee. it was not deemed important whether the omission to give the information was intentional or otherwise. Bowe v. Hunking, 135...