Aprile v. Colonial Trust Co.

• Citation: 173 A. 237,118 Conn. 573
• Court: Supreme Court of Connecticut
• Decision Date: 14 June 1934
• Parties: APRILE v. COLONIAL TRUST CO. RUBINO v. SAME.

173 A. 237

118 Conn. 573

APRILE v. COLONIAL TRUST CO.

RUBINO v. SAME.

Supreme Court of Errors of Connecticut.

June 14, 1934

Appeal from Superior Court, New Haven County; Newell Jennings Judge.

Actions by Francesca Aprile and by Rose Rubino against the Colonial Trust Company to recover damages for injuries caused by the collapse of a veranda on leased premises were tried to jury. There were verdicts for defendant which the court refused to set aside, and plaintiffs appeal.

Error and new trials ordered.

Francis P. Guilfoile, James M. Lynch, and Joseph C. Guilfoile, all of Waterbury, for appellants.

Maurice T. Healey, Jr., of Waterbury, William H. Tribou, of Hartford, and William J. Larkin, Jr., of Waterbury, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY, JJ.

HAINES, Judge

The defendant was the owner in possession of a three-story tenement house in Waterbury in which there were six apartments-two on each floor. A veranda covered the entire north side of the building, and the roof of the building was extended about ten feet to cover it. In the center of this veranda a stairway extended from the ground upward to each floor in succession, and a doorway opened through a partition onto the veranda which was intended for each apartment.

John Rubino was the lessee of the second floor apartment on the west side of the building, which included five rooms, an inner hallway, and the rear veranda thereof. The plaintiffs were the guests of Mr. and Mrs. Rubino, and were seated on this veranda in the early evening of May 28, 1933, when it collapsed without warning, throwing them to the floor below and causing the injuries complained of.

The northwest corner of the veranda was supported by a wooden post six by six inches in size and ten feet long, the lower end resting upon a timber at the ground; to the top of the post was mitered and nailed the end of a beam of the same size which extended horizontally across the face of the veranda, and a similar beam was also fastened at this point, extending horizontally back to the face of the building.

On the top of these beams were nailed boards which formed the floor of the veranda, and this floor entirely covered the post and beams at the point where the connections were made, so they could not be seen by one on that floor. The verandas on each floor were constructed in the same manner. The three ten-foot posts were thus used to support this corner of three verandas on the west side of the building, with the connecting beams, and also furnished the support for the north-west corner of the roof which projected from the entire north side of the building, to which gutters and drainpipes were attached to carry off the water from the common roof, and were part of the support for the whole veranda structure, including the stairways and landings used in common by all the tenants.

Underneath the floor of the Rubino apartment, the ends of the beams and the top of the supporting post on which they were laid and fastened had rotted and decayed, depriving the floor of Rubino's veranda of necessary support, thus causing the collapse. The photographs in evidence, taken afterward, show that the ends of the floor boards were clean-cut and apparently not decayed, while the ends of the beams and the top of the post at their connections under the floor were largely rotted away.

The defendant had in its employ a caretaker who had general supervision of the external portions of the building, and who had shown all the vacant apartments in the building to the prospective tenant before he decided to lease the one in question. This caretaker occupied the apartment under that which Rubino finally took.

In addition to these conceded facts, the plaintiff offered evidence, to prove and claimed to have proved that it was the duty of this caretaker and other agents in the defendant's employ to supervise the external portions of the building and keep them in repair; that they were well acquainted with the building, which was acquired by the defendant in 1931; that the building was old and had not been cared for a long time by the former owner; that the decayed conditions referred to would have been apparent by inspection made in the caretaker's apartment; that these agents had visited the building several times before the day of the collapse and had made all of the repairs to the front veranda, walls, roof, and other outside portions of the building; that, after the collapse, the defendant replaced the beams and supports in question with new ones, including new supports for the ground floor, and new piers in the cellar; that the decayed conditions complained of had existed for at least four years, and this portion of the building had not been painted for ten years; that the defendant and its agents had the privilege of access to all apartments for the purpose of inspection and making repairs, and that it had made all inside and outside repairs during its ownership; that rainwater seeped into these connections beneath the floor of the Rubino veranda, causing the decay, and that this was observable only from the apartment occupied by the defendant's agent; that Rubino was never given the opportunity of entering the apartment of this agent, and did not acquire this right with his lease, and was thus without means of knowing the condition. The defendant offered no evidence except three photographs as exhibits.

A vital feature of the case thus presented to the jury was whether the lessee or the landlord had assumed the risk of the defective condition of these beams and post. At common law, and save as modified by agreement or statute, the general rule is that a lessee takes the risk as to conditions in the leased premises; that he in effect purchases an estate in the premises leased, and it is ordinarily his duty to make such an...