Cullings v. Goetz

Decision Date12 May 1931
Citation176 N.E. 397,256 N.Y. 287
PartiesCULLINGS v. GOETZ et al.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Action by Joseph Cullings against Edward Goetz and others. From a judgment (231 App. Div. 266, 247 N. Y. S. 109), reversing a judgment of the Trial Term in favor of the plaintiff, and dismissing the complaint, the plaintiff appeals.

Judgment affirmed.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Edward A. Wolff, of Rome, for appellant.

D. Francis Searle, of Rome, for respondents.

CARDOZO, C. J.

Plaintiff brought his automobile to a garage, intending to drive in. There were two sliding doors at the entrance, one open, the other closed. He tried to push the closed one open, but it did not move upon its track. When he shook it with some force, it fell upon his back, causing injuries for which he sues. His action is against Goetz, lessee of the garage, and the Nickleys, the owners, who were also the lessors. The lease was an oral one, and ran from month to month. The trial judge left the question to the jury whether as one of its provisions the owners had agreed to make the necessary repairs. In the event of that agreement and of failure to repair after notice of the need, owners as well as lessee were to be held for any negligence in the unsafe condition of the doors. The jury found a verdict against all the parties sued. On an appeal by the owners, the Appellate Division reversed, and dismissed the complaint, upon the ground that the failure of the owners to keep the promise to repair was unavailing to charge them with liability in tort.

The evidence of the supposed promise is at best confused and uncertain, if there be evidence at all. For the purpose of this appeal we assume without deciding that it permits conflicting inferences. We assume also that there was freedom from contributory negligence, though another entrance was available, and there is evidence of notice that the one chosen was out of use. Giving the plaintiff's case the aid of these assumptions, we concur with the Appellate Division in its ruling that liability in tort must be confined to the lessee, whose possession and dominion were exclusive and complete.

The subject has divided juridical opinion. Generally, however, in this country as in England, a covenant to repair does not impose upon the lessor a liability in tort at the suit of the lessee or of others lawfully on the land in the right of the lessee. See e. g., Tuttle v. Gilbert Mfg. Co., 145 Mass. 169, 13 N. E. 465;Miles v. Janvrin, 196 Mass. 431, 82 N. E. 708,13 L. R. A. (N. S.) 378, 124 Am. St. Rep. 575;Fiorntino v. Mason, 233 Mass. 451, 454, 124 N. E. 283;Carroll v. Intercolonial Club of Boston, 243 Mass. 380, 383, 137 N. E. 656;Dustin v. Curtis, 74 N. H. 266, 67 A. 220,11 L. R. A. (N. S.) 504,13 Ann. Cas. 169;Davis v. Smith, 26 R. I. 129, 58 A. 630,66 L. R. A. 478, 106 Am. St. Rep. 691,3 Ann. Cas. 832;Brady v. Klein, 133 Mich. 422, 95 N. W. 557,62 L. R. A. 909, 103 Am. St. Rep. 455,2 Ann. Cas. 464; Cavalier v. Pope, [1905] 2 K. B. 757, 762, 764; Cavalier v. Pope, [1906] A. C. 428, 433; Cameron v. Young, [1908] A. C. 176; and see, also, 8 A. L. R. 766, collating the decisions.There are decisions to the contrary (Flood v. Pabst Brewing Co., 158 Wis. 626, 149 N. W. 489, L. R. A. 1916F, 1101;Merchants' Cotton Press & Storage Co. v. Miller, 135 Tenn. 187, 186 S. W. 87, L. R. A. 1916F, 1137;Barron v. Liedloff, 95 Minn. 474, 104 N. W. 289), but they speak the voice of a minority. Liability in tort is an incident to occupation or control. American Law Inst., Restatement of the Law of Torts, § 227. By preponderant opinion, occupation and control are not reserved through an agreement that the landlord will repair. Cavalier v. Pope, [1906] A. C. 428, at page 433; Pollock, Torts (13th Ed.) 532; Salmond, Torts (7th Ed.) 477. The tenant and no one else may keep visitors away till the danger is abated, or adapt the warning to the need. The landlord has at most a privilege to enter for the doing of the work, and at times not even that if the occupant protests. ‘The power of control necessary to raise the duty * * * implies something more than the right or liability to repair the premises. It implies the power and the right to admit people to the premises and to exclude people from them.’ Cavalier v. Pope, supra. In saying this we assume the possibility of so phrasing and enlarging the rights of the lessor that occupation and control will be shared with the lessee. There are decisions in Massachusetts that draw a distinction between a covenant merely to repair and one to maintain in safe condition with supervision adequate to the end to be achieved. Miles v. Janvrin, supra; Fiorntino v. Mason, supra; Carroll v. Intercolonial Club, supra; see, also, Robinson v. Heil, 128 Md. 645, 98 A. 195;Collison v. Curtner, 141 Ark. 122, 216 S. W. 1059, 8 A. L. R. 760. In the case now at hand, the promise, if there was any, was to act at the request of the lessee. What resulted was not a reservation by an owner of one of the privileges of ownership. It was the assumption of a burden for the benefit of the occupant with consequences the same as if there had been a promise to repair by a plumber or a carpenter. Cf. Zurich General Accident & Liability Ins. Co. v. Watson Elevator Co., 253 N. Y. 404, 409, 171 N. E. 688;Mollino v. Ogden & Clarkson Corporation, 243 N. Y. 450, 154 N. E. 307, 49 A. L. R. 518.

The rule in this state is settled in accord with the prevailing doctrine. Dicta, supposed to be inconsistent, are summoned to the support of a contrary position. They will be considered later on. Whatever their significance, they cannot overcome decisions directly to the point. As often as the question has been squarely up, the answer has been consistent that there is no liability in tort. Some of the decisions rejecting liability are judgments of this court. Kushes v. Ginsberg, 188 N. Y. 630, 81 N. E. 1168, affirming 99 App. Div. 417, 91 N. Y. S. 216;Sterger v. Van Sicklen, 132 N. Y. 499, 30 N. E. 987, 16 L. R. A. 640, 28 Am. St. Rep. 594; cf. Reynolds v. Van Beuren 155 N. Y. 120, 125,49 N. E. 763,42 L. R. A. 129;Wolf v. American Tract Soc., 164 N. Y. 30, 35,58 N. E. 31,51 L. R. A. 241;Golob v. Pasinsky, 178 N. Y. 458, 461,70 N. E. 973. Others, too many to be fully numbered, are in courts of intermediate appeal. Schick v. Fleischhauer, 26 App. Div. 210, 49 N. Y. S. 962;Frank v. Mandel, 76 App. Div. 413, 417, 78 N. Y. S. 855;Stelz v. Van Dusen, 93 App. Div. 358, 87 N. Y. S. 716;Boden v. Scholtz, 101 App. Div. 1, 2, 91 N. Y. S. 437;Pernick v. Central Union Gas Co., 183 App. Div. 543, 170 N. Y. S. 245. The doctrine, wise or unwise in its origin, has worked itself by common acquiescence into the tissues of our law. It is too deeply imbedded to be superseded or ignored. Hardly a day goes by in our great centers of population but it is applied by judges and juries in cases great and small. Countless tenants, suing for personal injuries and proving nothing more than the breach of an agreement, have been dismissed without a remedy in adherence to the authority of Schick v. Fleischhauer and Kushes v. Ginsberg. Countless visitors of tenants and members of a tenant's family have encountered a like fate. If there is no remedy for the tenant, there is none for visitors or relatives present in the tenant's right. Miles v. Janvrin, supra, 196 Mass. at page 440, 82 N. E. 708,13 L. R. A. (N. S.) 378, 124 Am. St. Rep. 575;Elefante v. Pizitz, 182 App. Div. 819, 821,160 N. Y. S. 910. Liability has been enlarged by statute where an apartment in a tenement house in a city of the first class is the subject of the lease. Altz v. Leiberson, 233 N. Y. 16, 134 N. E. 703. The duty in such instances is independent of the contract. It is one imposed by law, with liability in tort where the duty is ignored. Here the plaintiff was injured in the use of a garage. His remedy is against the tenant at whose invitation he was there.

We have spoken of dicta that are cited to the contrary. They do not touch the liability of the landlord for conditions within the premises affecting only the lessee or those who enter upon the premises in the right of the lessee. They have to do with nuisances threatening danger to the public beyond the land demised. Cf. Sterger v. Van Sicklen, supra, 132 N. Y. at page 501, 30 N. E. 987, 16 L. R. A. 640, 28 Am. St. Rep. 594; Ahern v. Steele, 115 N. Y. 203, 209, 22 N. E. 193, 5 L. R. A. 449, 12 Am. St. Rep. 778; City of Brooklyn v. Brooklyn City R. Co., 47 N. Y. 475, 483,7 Am. Rep. 469;Clancy v. Byrne, 56 N. Y. 129, 15 Am. Rep. 391;Jaffe v. Harteau, 56 N. Y. 398, 15 Am. Rep. 438; Brady v. Klein, supra; 18 Halsbury, Laws of England, § 989; ...

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    ...Stivers, 81 Kan. 713, 106 Pac. 996; Howard v. Sacks (Mo. App.), 76 S.W. (2d) 460, New York cases supporting defendant. Cullings v. Goetz et al., 256 N.Y. 287, 176 N.E. 397; Potter v. N.Y., O. & W. Ry. Co., 261 N.Y. 489, 185 N.E. 708; Lafredo v. Bush Terminal Co., 261 N.Y. 323, 185 N.E. 398;......
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  • Benjamin N. Cardozo: The Tort Whisperer Nine Decades Later.
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