Dustin v. Curtis

Decision Date04 June 1907
Citation67 A. 220,74 N.H. 266
PartiesDUSTIN v. CURTIS.
CourtNew Hampshire Supreme Court

Exceptions from Superior Court.

Action by Henry D. Dustin against Augusta W. Curtis. A nonsuit was ordered at the close of plaintiff's evidence, and he excepted. Overruled.

The defendant owned a building occupied by several tenants, and containing a hall which was rented by a lodge of Odd Fellows of which the plaintiff was a member. Whether the lodge was an association or a corporation did not appear. March 11, 1898, while the plaintiff was attending a meeting of the Rebekah branch of the lodge, he was injured by a fall of plastering from the ceiling. He had no knowledge of the defect in the plastering. The hall was first let to the lodge on March 16, 1886, for a term of five years, at an annual rental of $84; the defendant agreeing to make repairs. In December, 1891, and January, 1892, there were negotiations which resulted in the lodge continuing as tenant of the hall at an annual rental of $100. If the terms of the original letting were reduced to writing, the lease could not be found. There was no definite evidence of a written lease. The plaintiff was present in 1892, when it was arranged that the lodge should continue as tenant At the trial he was asked, "What change, if any, was made in the original rental?" and he replied, "The price was raised to $100 a year." Subject to the defendant's exception, Mrs. Dustin, a witness for the plaintiff, testified that in April, 1899, the defendant's husband, who was her agent in letting and managing the hall, told her he was to make the repairs. Some little time before the accident the defendant was informed that a portion of the plastering had fallen, and her husband sent a person to see what repairs were needed, but there was no evidence that any repairs were ever made. There was evidence that the plastering, at the point where it became detached and fell, had been wet from leakage during that winter and before, but it was not shown where the water came from.

Martin & Howe, for plaintiff. Streeter & Hollis, for defendant.

BINGHAM, J. It is clear upon the evidence that the premises upon which the plaintiff was when he received his injury were in the possession and control of a tenant. It is equally clear that the plaintiff was not present at the time as a guest of the defendant, or upon her invitation. The plaintiff claims that he was there as the tenant, or as a guest of the tenant. It is doubtful whether the evidence is sufficiently definite to warrant either conclusion; but if we assume that the plaintiff was present as a tenant, that one of the terms of the tenancy was that the defendant should make all necessary repairs, and that the plaintiff's injury was due to the defendant's omission to repair, it does not follow that this action of tort for negligence can be maintained against the defendant because of her omission in this respect, unless her failure resulted in the breach of a duty imposed by law, as well as the breach of an obligation created by the agreement of the parties. "Actionable negligence is the neglect of a legal duty. * * * To bring the case within the category of actionable negligence some wrongful act must be shown, or a breach of some positive duty. * * * The duty to do no wrong is a legal duty. The duty to protect against wrong is, generally speaking and excepting certain intimate relations in the nature of a trust, a moral obligation only, not recognized or enforced by law." Buch v. Company, 69 N. H. 257, 260, 261, 44 Atl. 809, 76 Am; St. Rep. 163; Pittsfield, etc., Co. v. Shoe Co., 71 N. H. 522, 531, 53 Atl. 807, 60 L. R. A. 116.

In Courtenay v. Earle, 10 C. B. 73, Jervis, C. J., in speaking of the case of Boorman v. Brown, 3 Q. B. 511, said: "That case will be found to proceed upon the principle that, where there is an employment, which employment itself creates a duty, an action on the case will lie for a breach of that duty, although it may consist in doing something contrary to an agreement made in the course of such employment by the party upon whom the duty is cast. * * * Before that case it had been supposed, upon the authority of Corbet v. Packington [6 B. & C. 268], that the violation of a bare promise, without any such general duty, might be the subject of an action of tort. That clearly is not so. Without altogether destroying the well-known distinction between actions of contract and actions of tort, I think we cannot hold the counts in this declaration to be well joined." In Legge v. Tucker, 1 H. & N. 500, Pollock, C. B., in stating the distinction between actions of contract and actions of tort, said: "When the foundation of the action is a contract, in whatever way the declaration is framed, it is an action of assumpsit; but when there is a duty ultra the contract, the plaintiff may declare in case." And in Tattan v. Railway, 2 E. & E. 844, Cockburn, C. J., in considering the subject, said: "Whatever may be the distinction between an obligation arising out of a contract and a duty imposed by the common law on persons entering into a contract, it is impossible to refer to the cases to which our attention has been called, without seeing that they establish that a duty was imposed upon the defendant [common carriers] * * * by the custom of the realm so soon as they entered into the contract with the plaintiff, and independently of the terms of the contract itself. The plaintiff might, had he thought fit, have brought his action on the contract; but he was also entitled to sue the defendants for the breach of their common-law...

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