Busick v. Home Owners Loan Corp.

• Decision Date: 03 February 1941
• Court: New Hampshire Supreme Court
• Parties: BUSICK v. HOME OWNERS LOAN CORPORATION.

18 A.2d 190

BUSICK

v. HOME OWNERS LOAN CORPORATION.

Supreme Court of New Hampshire. Hillsborough.

Feb. 3, 1941.

BRANCH, J., dissenting in part.

Exceptions from Superior Court, Hillsborough County; Lorimer, Judge.

Action by Mary Busicion for alleged negligence and brk against the Home Owners Loan Corporateach of contract. The trial judge ordered a nonsuit, and plaintiff brings exception.

Exception overruled.

Action, the declaration containing one count for negligence and one for breach of contract.

The evidence tended to prove these facts. The plaintiff's husband rented a dwelling house from the defendant under an oral lease. As a term of the lease the defendant promised to keep the house in repair; and it made various repairs on different occasions. The porch of the house was reached from the ground by three steps, of which the two upper ones were wooden and in need of renewal. The plaintiff called the defendant's attention to them a number of times, and on each occasion was promised that they would be put in good condition, but nothing was done. By reason of their defective condition the plaintiff fell while descending them and was hurt.

The court, Lorimer, J, ordered a nonsuit. The plaintiff excepted. Further evidence of facts appears in the opinion.

Sheehan & Phinney, of Manchester (Wm. L. Phinney, of Manchester, orally), for plaintiff.

Samuel J. Dearborn and Devine & Tobin, all of Manchester (John E. Tobin, of Manchester, orally), for defendant.

ALLEN, Chief Justice.

"It is 'the well-settled rule that a landlord is under no legal duty to repair the leased premises' (Gobrecht v. Beckwith, 82 N.H. 415, 417, 135 A. 20, 52 A.L.R. 858, and cases cited), provided, of course, he is not so obligated by the express terms of the tenancy. But, even then, a breach of his obligation does not render him liable in an action of tort for negligence. Dustin v. Curtis, 74 N.H. 266, 67 A. 220, 11 L.R.A. (N.S.) 504, 13 Ann.Cas. 169; Petroski v. Mulvanity, 78 N.H. 252, 99 A. 88.

"The rule is otherwise, however, if the landlord, being under no contractual duty to repair the demised premises, chooses nevertheless to undertake that work. * * *" Hunkins v. Amoskeag Mfg. Company, 86 N.H. 356, 357, 169 A. 3, 4.

"* * * where the only relation between the parties is contractual, the liability of one to the other in an action of tort for negligence must be based upon some positive duty which the law imposes because of the relationship, or because of the negligent manner in which some act which the contract provides for is done; and * * * the mere violation of a contract, where there is no general duty, is not the basis of such an action. * * * In fact, it is generally held that a tenant, a member of his family, or his guest, cannot sue a landlord in tort for personal injuries due to his omission to repair premises which have passed into the possession and control of the tenant, even if the landlord has agreed to make repairs." Dustin v. Curtis, 74 N.H. 266, 269, 67 A. 220, 222, 11 L.R A., N.S.N. 504, 13 Ann.Cas. 169.

The promise to repair here is no evidence of retention of control. If it were, it would so heavily militate against the rule that the promise creates no more than contractual liability as virtually to defeat it. Nor is performance of the promise in specific instances, coupled with the promise, any more helpful to show retention. The promise with or without performance, if not void of relevancy on the issue, has only conjectural value in indicating that the tenant does not have full possession and control. "There being no evidence * * * that either the repairs made by the landlord or his promise to repair were motivated by a recognition on his part of a duty owed to the tenant in that respect rather than by a desire to preserve his investment, * * * there is no evidence of a retention of control by the landlord * * *." Folsom v. Goodwin, 90 N.H. 467, 470, 10 A.2d 666, 668.

Here the agent's authority was to rent and keep the property "in rentable condition". The authority is insufficient as evidence to warrant the conclusion that maintenance indicated retained control in the absence of agreement or circumstances giving it such a feature.

In respect to the count for breach of contract, the claim is that even if the defendant owed no duty of care to the plaintiff, its disregard of its promise to repair caused her fall and resulting damages. If the promise to repair contemplated personal injuries as a consequence of its breach, it amounted to a promise to furnish personal safety by making the repairs. To say that the defendant owed no duty of care to protect the plaintiff's personal safety but owed her the duty arising from contractual obligation to protect her, may seem a refinement of distinction, but narrow differences are at times determinative of rights and liabilities. The promise to repair is not an insurance or guaranty of personal safety, but when personal safety is a purpose of...