Davenport v. Squibb

• Decision Date: 08 January 1947
• Citation: 320 Mass. 629,70 N.E.2d 793
• Parties: MARY M. DAVENPORT v. CHARLES G. SQUIBB.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

320 Mass. 629

70 N.E.2d 793

MARY M. DAVENPORT v. CHARLES G. SQUIBB.

Supreme Judicial Court of Massachusetts, Middlesex.

January 8, 1947

December 6, 1946.

Present: FIELD, C.

J., LUMMUS, QUA DOLAN, & RONAN, JJ.

Landlord and Tenant, Unavoidable casualty, Seasonal letting of furnished dwelling. Contract, Implied. Warranty. Words "Unavoidable casualty."

An infestation of a leased dwelling by a swarm of beetles, which did not cause actual physical destruction of or damage to the premises even though it was an "unavoidable casualty" and rendered the premises unfit for occupancy by the lessee, did not make operative a clause of the lease providing for abatement or suspension of the rent, or termination of the lease, in case the premises during the term should be "destroyed or damaged by fire or other unavoidable casualty, so that the same shall be thereby rendered unfit for use and habitation."

Evidence which did not warrant a finding that beetles were present in or about a furnished seashore dwelling at the time of its letting for a summer, but at most that a swarm of beetles invading the premises during the summer and rendering them unfit for occupancy were attracted there by the bright lights of the dwelling after the letting and after the tenant had taken possession, would not have supported a finding of breach by the landlord of the implied warranty of fitness of the premises for occupancy.

CONTRACT. Writ in the Third District Court of Eastern Middlesex dated November 8, 1944.

The action was heard by Counihan, J., who found for the plaintiff. A report to the Appellate Division was ordered dismissed, and the defendant appealed.

J. Sidney Stone, for the defendant. R. C. Evarts, for the plaintiff.

RONAN, J. The defendant on May 15, 1944, leased a furnished house to the plaintiff for the period from June 1, 1944, to September 15 1944, at a rental of $1,650, which the plaintiff paid. The lease provided that "in case the premises or any part thereof, during said term, be destroyed or damaged by fire or other unavoidable casualty, so that the same shall be thereby rendered unfit for use and habitation," the rent should be abated or suspended until the premises were put in proper condition by the lessor or the lease might be terminated by the lessor. The demised premises consisted of a large house, all the rooms of which were located on one floor. There was evidence that the house had fifty-five windows and thirteen doors with windows in them; that the house was equipped with flood lights on each of the outside walls; that the premises had not been occupied since 1941; that they had been thoroughly cleaned during 1942; that the plaintiff took possession of the house on May 28, 1944; that about June 10, 1944, beetles began to appear in the bedrooms, at first few in number, then in greater numbers, infesting all the rooms, and rendering the premises unfit for use and occupation by the plaintiff and members of her household; that fumigation of the premises at the expense of the defendant did not rid them of these pests, and the plaintiff vacated them on July 25, 1944. The judge found that the presence of the beetles constituted an unavoidable casualty, and that they were present on the grounds or in the dwelling house when the plaintiff took possession. He awarded damages to the plaintiff on the fourth count of the declaration, which alleged the execution of a lease; the payment of the entire rent in advance; that the premises were rendered unfit for use and habitation by an invasion of beetles; and that, while the lease provided that, in case the premises were destroyed or damaged by fire or other unavoidable casualty and rendered unfit for use and habitation, the rent or a just proportional part of it should be abated or suspended until the premises should be put in proper condition by the lessor or the lease might be terminated at the election of the lessor, the defendant lessor did not suspend or abate the rent "and did not elect to terminate the lease." ^[1] The defendant appealed from the order of the Appellate Division dismissing the report.

The infestation of these premises by a swarm of beetles might well be found to be an unavoidable casualty. Their presence was not due to the fault of either the landlord or the tenant. "It was an extraordinary misfortune, outside the course of experience, which the defendant could not anticipate and which occurred entirely without fault on . . . [his] part." Maynard v. Carey Construction Co. 302 Mass. 530 , 533. See Tarle v. Park Drive Realty Inc. 308 Mass. 550 . It has been said that the phrase "unavoidable casualty" in a clause almost identical with that in the present lease "comprehends only damage or destruction arising from supervening and uncontrollable force or accident." Welles v. Castles, 3 Gray, 323, 325. These words commonly appear in those provisions of a lease where the parties wish to define their rights in case the premises are destroyed or damaged by fire. Such a provision probably came into general use in order to avoid the hardship of requiring the lessee to pay the full rental for the demised term where the property had been destroyed or damaged during the term. Fowler v. Bott, 6 Mass. 63 . Leavitt v. Fletcher, 10 Allen, 119. Israel v. Beale, 270 Mass. 61 . Cases have frequently arisen relative to the application of fire clauses, where the demised premises have been damaged by fire or other unavoidable casualty, in determining whether there should be an abatement of rent or whether the nature and extent of the damage were such as to permit the exercise of the authority given by the lease to one party or the other to terminate the lease. Fire clauses in a form similar to the clause in the instant lease, however, do not become operative in the absence of actual destruction or physical damage resulting from fire or other unavoidable casualty to the demised premises or the building of which they were a part. Wall v. Hinds, 4 Gray, 256. Rogers v. Snow, 118 Mass. 118 . Hunnewell v. Bangs, 161 Mass. 132 . D. A. Schulte, Inc. v. American Realty Corp. 256 Mass. 258 . Norris Drug Co. v. Gainsboro Building Corp. 260 Mass. 117. Clayton v. Perry, 276 Mass. 12 . Allen v. Kilpatrick, 277 Mass. 237 . H. W. Robinson Carpet Co. v. Fletcher, 315 Mass. 350 . But in the present case there was no evidence that the beetles destroyed or damaged the demised premises, and that as a result of such destruction or damage the premises were "thereby rendered unfit for use and habitation." The judge was wrong in finding for the plaintiff on this ground, and in refusing the defendant's tenth request that the presence of the beetles did not come within the provisions of the fire clause.

We next inquire whether the evidence was sufficient to prove a breach of warranty by the defendant at the time he leased the premises to the plaintiff. ^[1] When the defendant let for the summer a furnished house at the seashore, he impliedly agreed that the house was reasonably...