Domenicis v. Fleisher

• Decision Date: 14 May 1907
• Citation: 195 Mass. 281,81 N.E. 191
• Parties: DOMENICIS v. FLEISHER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

195 Mass. 281

81 N.E. 191

DOMENICIS v. FLEISHER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 14, 1907

COUNSEL

John E. Crowley, for plaintiff.

David Stoneman and Samuel Hurwitz, for defendants.

OPINION

LORING J.

It is settled that in case of the lease of a tenement in a building where the entries and stairways or other parts of the building remain in the control of the landlord for the common use of tenants, the landlord is liable for negligence in not keeping them in the condition in which he is bound to keep them. Looney v. McLean, 129 Mass 33, 37 Am. Rep. 295; Andrews v. Williamson, 193 Mass. 92, 78 N.E. 737; Miller v. Hancock [1893] 2 Q. B. 177; Hargroves v. Hartopp, [1905] 1 K. B. 472.

It is also settled that the measure of the landlord's liability is to use due care to keep that portion of the premises remaining in his control for the use of the tenants, in the same condition in which they appeared to be at the date of the demise. Andrews v. Williamson, 193 Mass. 92, 78 N.E. 737.

In the case at bar the jury were warranted in finding that the landlord was notified that the water-closet was out of order two days before the accident, and that takes the case out of Hutchinson v. Cummings, 156 Mass. 330, 31 N.E. 127, and Cummings v. Ayer, 188 Mass. 294, 74 N.E. 336.

The plaintiff in the case at bar for these reasons was entitled to go to the jury unless the fact that she was not the tenant but a daughter of the tenant makes a difference.

We are of opinion that it does not.

There are a number of cases in this commonwealth in which a member of the tenant's family has been allowed to recover for a negligent act of the landlord. Looney v. McLean, 129 Mass. 33, 37 Am. Rep. 295; Shute v. Bills, 191 Mass. 433, 78 N.E. 96; Andrews v. Williamson, 193 Mass. 92, 78 N.E. 737. See, also, in this connection Woods v. Naumkeag Steam Cotton Co., 134 Mass. 357, 45 Am. Rep. 344; Moynihan v. Allyn, 162 Mass. 270, 38 N.E. 497; Cummings v. Ayer, 188 Mass. 294, 74 N.E. 336; Dalton v. Gibson, 192 Mass. 1, 77 N.E. 1035. There are also cases where one who has come on the leased premises on business with the tenant has been held to be entitled to recover for negligence on the part of the landlord under circumstances under which the tenant would have been entitled to recover. Wilcox v. Zane, 167 Mass. 302, 45 N.E. 923; O'Malley v. Twenty-Five Associates, 170 Mass. 471, 49 N.E. 641; Roche v. Sawyer, 176 Mass. 71, 57 N.E. 216; Jordan v. Sullivan, 181 Mass. 348, 63 N.E. 909.

If the owner of a building enters into a contract to let his premises to another and breaks that contract, the only person who can sue him for the breach is the other party to the contract. A member of the family of the person who under the contract has a right to become a tenant has no remedy for not making the lease, although he or she was to be an occupant of the premises under the lease.

But when the lease has been made and possession taken, a new relation comes into existence between the owner on...