Clifford v. Atlantic Cotton Mills

• Decision Date: 09 January 1888
• Citation: 15 N.E. 84,146 Mass. 47
• Parties: CLIFFORD v. ATLANTIC COTTON MILLS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 Mass. 47

15 N.E. 84

CLIFFORD v. ATLANTIC COTTON MILLS.

Supreme Judicial Court of Massachusetts, Essex.

January 9, 1888

COUNSEL

John M. Stearns, for plaintiff.

A man has no right to construct his roof so that it will inevitably, at certain seasons of the year, collect snow and ice that is liable to fall upon the land or person of his neighbor, and a traveler-by has the same right to protection as though he owned the sidewalk in fee-simple, (Ball v Nye, 99 Mass. 582; Shipley v. Fifty Associates, 101 Mass. 253;) and no other proof of negligence on his part is necessary, (Ball v. Nye, supra; Washb.Easem. 390.) A tenant's responsibility is confined to the premises which they respectively and exclusively occupy. Shipley v Fifty Associates, 106 Mass. 194, 200. This lease reserved to the landlord a right to enter, view, and make repairs; hence they had control of the roof. A fault in the original construction is considered intentional on the part of the landlord, and he is liable for an injury from it although premises are occupied by a tenant. The act of letting is a continuance of the nuisance. Larue v. Hotel Co., 116 Mass. 67; Roswell v. Prior, 12 Mod 635; Dalay v. Savage, 145 Mass. 38, 12 N.E. 841; McDonough v. Gilman, 3 Allen, 264; Kirby v. Market Ass'n, 14 Gray, 249; 1 Add. Torts, (Wood,) § 140. It is not in the power of the landlord to assign over his premises so as to escape liability for damages from an existing nuisance; more especially when he grants it over, reserving rent. 1 Add. Torts, (Wood,) § 222. If a landlord is in possession of a part of the premises, or is bound to repair, he is responsible. Larue v. Hotel Co., supra. A landlord is liable for damages from premises which are, from their construction, dangerous, although occupied by a tenant, unless the tenant has agreed with his landlord to put the premises in proper repair; and that the tenant may be also liable is no defense to the landlord. Dalay v. Savage, supra.

D. & C. & C.G. Saunders, for defendant.

That the occupier, and not the landlord, is bound, as between himself and the public, so far as to keep the leased buildings in repair, that they may be safe to the public, unless there is an express agreement on the part of the landlord himself to repair, is a doctrine thoroughly settled by a long line of cases in this commonwealth. Lowell v. Spaulding, 4 Cush. 277; Oakham v. Holbrook, 11 Cush. 299; Kirby v. Market Ass'n, 14 Gray, 249; Milford v. Holbrook, 9 Allen, 17, 21; Leavitt v. Fletcher, 10 Allen, 120; Com. v. Watson, 97 Mass. 562; Stewart v. Putnam, 127 Mass. 403; Cunningham v. Bank, 138 Mass. 480. Even where there is an agreement on the part of the landlord himself to make repairs, the only ground upon which he is held liable to a third party for his neglect so to do is to avoid circuity of action; he being ultimately liable to the tenant for any damages suffered by the latter. Lowell v. Spaulding, supra; Nelson v. Brewery Co., 2 C.P.Div. 311. There was no such agreement on the part of this defendant. The clause allowing its agents at any time to enter upon the premises to repair the same, or to ascertain if the same were properly used, in no way obliged it to make repairs, but merely permitted it so to do, and was doubtless inserted for its own protection against the non-feasance or misfeasance of irresponsible tenants. The true test is, could the tenant, under his lease, have compelled the landlord to repair, or could he have maintained an action against the defendant for its failure to remove the snow from the roof? The answer must surely be in the negative. This case does not come under the class much discussed in the reports, where the owner retains a control over part of the premises, for the evidence is that the entire house was leased. There is another class of cases in which the landlord has been held liable on the ground that a nuisance existed on the premises at the time of letting, and that by letting them in that condition he has authorized the continuance of the nuisance. To this class belong Dalay v. Savage, 145 Mass. 38, 12 N.E. 841, and Joyce v. Martin, (recently decided in Rhode Island,) 10 Atl.Rep. 620. In Shipley v. Fifty Associates, 101 Mass. 251, and 106 Mass. 194, it was not necessary for the court to pass upon the question whether the owners were at fault because a roof so built that snow and ice would be likely to fall from it was in itself a nuisance, or whether the tenants were liable because they had failed to remove the ice and snow before it had accumulated sufficiently to endanger persons on the street below; for the case found that the roof had not been demised, but was under the exclusive control of the owners. In Leonard v. Storer, 115 Mass. 86, the court passed upon this precise question, and ruled that the fault was on the part of the tenants for not removing the snow, and so keeping the building safe. This case decides the precise point raised in the one at bar. These cases seem to fall within the principle of Rich v. Basterfield, 4 C.B. 783, rather than that of Dalay v. Savage and Joyce v. Martin; that is, the roof as built is not in itself a nuisance, but it may or may not be so used by the tenant as to become such. In that event, the occupier, and not the owner, is responsible for damage arising from such use. The ruling of the justice presiding at the trial in the superior court was correct, and his finding should be sustained. Owings v. Jones, 9 Md. 108. See, also, Woods v. Cotton Co., 134 Mass. 357.

OPINION

HOLMES J.

This is an action for personal injuries done to the plaintiff by the fall of snow from the roof of the defendant's house into the highway. The whole house was let at the time to a tenant; and the only difference between this case and Leonard v. Storer, 115 Mass. 86, is that there the tenant had agreed to make all needful repairs, while in the case at bar there was no contract on either side, but the landlord reserved the right to enter the premises to repair the same, or to ascertain if the same were properly used, etc. This difference cannot affect the result, because the damage was not caused in either case by a want of repairs, but by the original character of the structure, and therefore the presence or absence of a covenant to repair has nothing to do with the question, and because the landlord's reservation of a right to enter, in the lease before us, did not include the control of the roof, which the landlord was held to have had in Kirby v. Market Ass'n, 14 Gray, 249; Shipley v. Fifty Associates, 101 Mass. 251, 254, 106 Mass. 194, 200. See Larue v. Hotel Co., 116 Mass. 67. See, also, Lowell v. Spaulding, 4 Cush. 277; Payne v. Rogers, 2 H.Bl. 350. It may be that the tenant had a right to put a guard upon the roof in Leonard v. Storer, but, if so, his right was independent of his covenant to repair, and the tenant had the same right in the present case. Boston v. Worthington, 10 Gray, 496, 500. See Swords v. Edgar, 59 N.Y. 28, 36; Coupland v. Hardingham, 3 Camp. 398. On the other hand, if the landlord had the right to put up a guard, in the present case, during the tenancy, it is not clear that he did not have it also in the other. In either case, of course, a guard might have been put up before the lease was made. The decision in Leonard v. Storer was on the ground that "it does not appear that [the tenant] might not have cleared the roof of snow by the exercise of due care, or that he could not by proper precautions have prevented the accident." The same is true here.

There is no doubt that a man sometimes may be liable in tort notwithstanding the fact that the danger was attributable in part to the concurrent or subsequently intervening misconduct of a third person. Elmer v. Locke, 135 Mass. 575, 576; Lane v. Atlantic Works, 111 Mass. 136; Walker v. Cronin, 107 Mass. 555; Newman v. Zachary, Aleyn, 3; Scott v. Shepard, 2 W.Bl. 892, 3 Wils. 403; Dixon v. Bell, 5 Maule & S. 198; Clark v. Chambers, 3 Q.B.Div. 327; Winsmore v. Greenbank, Willes, 577, (see 21 Amer.Law Rev. 765, 769;) Lynch v. Knight, 9 H.L.Cas. 577, 590, 600; Lumley v. Gye, 2 El. & Bl. 216. See 1 Hale, P.C. 428; Riding v. Smith, 1 Exch.Div. 91, 94. But the general tendency has been to look no further back than the last wrong-doer, especially when he has complete and intelligent control of the consequences of the earlier wrongful act. See, for example, Lane v. Atlantic Works, 111 Mass. 141; Hastings v. Stetson, 126 Mass. 329; Clarke v. Morgan, 38 Law T. (N.S.) 354; Carter v. Towne, 103 Mass. 507.

In the case of landlords who have given up to the tenant control of the premises in the matter out of which the damage arises this court has never gone further than...