Davis v. Smith

• Decision Date: 08 April 1904
• Parties: DAVIS v. SMITH.
• Court: Rhode Island Supreme Court

58 A. 630

26 R.I. 129

DAVIS

v. SMITH.

Supreme Court of Rhode Island.

April 8, 1904.

Case for negligence under Gen. Laws, c. 233, § 14, by Frank E. Davis against Eliza S. Smith. On demurrer to the declaration. Sustained.

Argued before STINESS, C. J., and TILLINGHAST and DOUGLAS, JJ.

Wm. M. P. Bowen, for plaintiff.

Robert W. Burbank, for defendant.

DOUGLAS, J. This action is brought under the provisions of Gen. Laws 1896, c. 233, § 14, which provides that: "Whenever the death of a person shall be caused by the wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages," etc. The plaintiff is the father and the sole beneficiary of George L. Davis, whose death, while an infant, he alleges was caused by the failure of the defendant to repair the drains in a dwelling house where the deceased resided. The case is certified to this division on substantial demurrer to the declaration.

The declaration is in two counts. The first alleges that the defendant, being the owner of a certain dwelling house, leased the lower tenement therein to "the plaintiff and his family for the habitation of said lower tenement and the appurtenances thereof by said plaintiff and said plaintiff's family as tenants from month to month"; that the defendant agreed to keep the premises in repair, and thereupon it became her duty to do so; that she neglected this duty by suffering a water-closet and its appurtenances to be out of repair, foul, and stopped up, emitting gases and odors prejudicial to life and health of the plaintiff and his family; that the "said defendant, to wit, the agent of said defendant," knew, or by the exercise of due care ought to have known, of the condition of the closet, etc.; that the said child, while occupying the premises, was injured by the odor and gases emitted by the water-closet, and became sick, and thereby contracted diphtheria, of which he died. The second count avers a similar letting to "plaintiff and his family"; that the water-closet and drains were old, unsafe, out of repair, and the dangerous condition of them was known to the defendant, to wit, defendant's agent; that "the said defendant, to wit, said agent," knew that a child had previously died in said tenement by reason of said dangerous condition; that the plaintiff and his deceased child entered upon the premises not knowing its dangerous condition, and the plaintiff and his child could not by due care ascertain such condition; that this condition was not patent or ascertainable by examination and inquiry; that the defendant owed to the plaintiff and his child the duty of informing them of this condition; that the defendant, disregarding this duty, falsely represented to the plaintiff and to his minor child that said premises were in good condition, whereby the plaintiff and his child were induced to enter and occupy said premises; that by exposure to the odors and gases emitted from the defective water-closet and drains the child became sick, and in a condition to contract disease, and did contract diphtheria and died. There are several obvious defects of form in both these counts which would require amendment before a defendant could intelligently plead to them. The letting set forth in both counts is to "the plaintiff and his family," and the representations set out in the second count are to the plaintiff and his minor child, an infant "of tender years." The absurdity of such allegations is an embarrassment when we take them up for serious consideration. Does the pleader expect to prove, as he has alleged, that the plaintiff and his family—presumably his wife and children—took a Joint verbal lease of this tenement, and that the landlord negotiated with and made representations and promises to a child of tender years, who bad no legal capacity to enter into a contract or to understand the conditions which were under discussion? But, aside from the remarkable character of the allegation, the word "family" is too indefinite to describe a party to a contract. The only proper way to set out the parties to a contract is by their names, and the child is not named as a tenant. For all that appears in the first count, he may not have been born when the lease was made. The repeated allegation that "the defendant, to wit, the defendant's agent," knew, or ought to have known, is not a sufficient allegation for any purpose. If the relation between principal and agent was such that actual knowledge by the agent would be imputed by law to the principal, such relation should be set out, or knowledge should be alleged in the principal, and no mention made of the agent. Some of these defects of pleading may be cured by amendment, and the points raised by the demurrers and argued by counsel, which go to the substance of the case, may be considered.

The demurrer to the first count raises the question whether a landlord who has agreed with his tenant to make repairs is liable in tort to a member of the tenant's family who receives personal injuries from the landlord's neglect to repair. The plaintiff's counsel seems to think that by assuming the lease to have been made to the injured party some advantage is secured, whereas the contrary is true. Tay. L. & T. §§ 175, 175a; Perez v. Raband, 76 Tex. 191, 193, 13 S. W. 177, 7 L. R. A. 620. The liabilities of a landlord to a stranger do not arise from contract, and are greater than those which he assumes to a tenant and members of the tenant's family.

The courts very generally hold that the tenant and his wife, children, servants, and guests cannot sue in tort for breach of the landlord's covenant to repair. Strangers in certain cases may do so, but the tenant's remedy is only on the contract. In Tuttle v. Gilbert Mfg. Co., 145 Mass. 169, 174, 13 N. E. 465, the court say: "The action of tort has for its foundation the negligence of the defendant, and this means more than a mere breach of a promise. * * * As a general rule, there must be some active negligence or misfeasance to support tort. There must be some breach of duty distinct from breach of contract." And again: "We do not see how the cases would differ in principle if an action were brought against a third person who had contracted to repair the stable floor and had unreasonably delayed in performing the contract." Thompson v. Clemens, 96 Md. 196, 53 Atl. 919, 60 L. R. A. 580, was brought by the wife of a tenant to recover damages for personal injuries sustained by falling through the floor of a porch attached to a house rented by her husband. The declaration alleged that the defendant had promised "to keep and maintain the premises in good, safe, and perfect condition." The court hold that, whether the action be ex contractu by the tenant himself, or ex delicto by a stranger to the contract, the rule of damages for injury caused by mere breach of the contract is the same, and does not include damages for personal injuries. "We have no doubt," say the court (page 207, 96 Md., page 921, 53 Atl.), "that no action, either in contract or in tort, by a tenant, or one of his family, against a landlord to recover damages for personal injuries, should be sustained merely because the latter has been guilty of a breach of contract to make necessary repairs in the premises demised. It is not denied by counsel that such damages are too remote, and not in contemplation of the parties, to be recovered in an action ex contractu, and to permit a recovery for such damages based on the contract simply because it is in form an action of tort would be making a distinction that could not be justified by reason or authority." Schick v. Fleischhauer, 26 App. Div. 210, 49 N. Y. Supp. 962, holds that no duty to repair rests upon a landlord except what is created by agreement; that the measure of damages is the expense of doing the work which the landlord agreed to do but did not. "A contract to repair does not contemplate, as damages for failure to keep it, that any liability for personal injuries shall grow out of the defective condition of the premises, because the duty of the tenant, if the landlord fails to keep his contract to repair, is to perform the work himself and recover the cost in an action for that purpose, or upon a counterclaim in an action for the rent, or, if the premises are made untenantable by reason of the breach of the contract, the tenant may move out and defend in an action for the rent as upon an eviction. * * * The tenant is not at liberty, if the landlord fails to keep his contract to repair the premises, to permit them to remain in an unsafe condition, and to stay there at the risk of receiving injury on account of the defects in the premises, and then recover as for negligence for any...