Farguet v. De Senti

• Decision Date: 06 January 1930
• Citation: 110 Conn. 367,148 A. 139
• Court: Connecticut Supreme Court
• Parties: FARGUET v. DE SENTI ET AL.

148 A. 139

110 Conn. 367

FARGUET v. DE SENTI ET AL.

Supreme Court of Errors of Connecticut.

January 6, 1930

Appeal from Superior Court, New Haven County; John Richards Booth Judge.

Action by Florence Farguet against Louis W. De Senti and others to recover damages for personal injuries, alleged to have been caused by the negligence of defendants, landlords of plaintiff. Tried to the jury. Verdict for plaintiff, which the court, upon defendants' motion, set aside, and plaintiff appeals. Error, and new trial ordered.

Harry L. Edlin and John Henry Sheehan, both of New Haven, for appellant.

Stanley Dunn and William T. Holleran, both of New Haven, for appellees.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

MALTBIE, J.

The plaintiff brings this action against the owners of a tenement house to recover for injuries suffered by reason of the breaking of a rail of a veranda at the rear of the house. There were three tenements in the house, each occupying one floor. There was a porch running across the rear of the house on each floor, and stairways led from that one on the first floor to that on the second floor and from that on the second floor to that on the third. Access was gained to the porch on the first floor by steps leading up to it from the rear yard. These steps were located on the side of the porch parallel to the rear of the house, near one end of it. Almost directly opposite these steps was an entrance to the first floor tenement. As one mounted the steps the stairway to the upper porches was at his left, toward the center of the porch, and it inclined away from the steps. Beyond this stairway was a portion of the porch comprising about one-half of it. This was not directly connected with any tenement, and it is to be particularly noted that there was no door from it to the tenement on that floor. The railing ran along the side of the porch from the steps to the farther end and was divided into two sections by a post in the middle of the porch. It was the section farther from the steps which broke, causing the plaintiff's fall. She was one of the occupants of the first floor tenement. She recovered a verdict which the trial court set aside because it held that there was no evidence which could reasonably support a conclusion that the portion of the porch from which the plaintiff fell was retained by the owners of the building in their control for the common use of the occupants of the various tenements.

There was no evidence as to the terms of the leases of the various tenements of the house, and it therefore became a question of fact whether the portion of the porch in question was included in the lease of any specific tenement or remained in the control of the defendants. Vinci v. O'Neill, 103 Conn. 647, 651, 131 A. 408. It must be borne in mind that the question whether a particular portion of the premises not included in the terms of any lease is or is not reserved by the landlord for the common use of the tenants is essentially one of intention, and the use made of that portion of the premises is evidence of intention. Where, as in the instant case, a porch is in part used for common passageway, it does not by any means follow that only so much as is reasonably necessary for such use is deemed to be reserved by the landlord. The situation is not dissimilar from that which often exists as to the halls in an apartment house where considerable portions of them are not necessary for passageway or the use of stairs leading to other floors. A porch may be so constructed that a portion of it is not naturally or reasonably to be regarded as incident to a common use by various tenants in the building. Where such a situation exists, there may be such a use by one of them alone as indicates that the parties intended that portion of it to be annexed to the premises included in his lease. On the other hand, the mere fact that a portion of the porch is not ordinarily used in common does not necessarily mean that it is to be regarded as annexed to a particular tenement; and this is particularly true where the porch is not definitely divided into separate parts. Care should also be taken to distinguish between uses by a tenant as in his individual right and those uses which are only the exercise of such personal privileges as tenants are apt to assume even as regards portions of the premises held by the landlord for the common use of all. Where a portion of a porch is plainly reserved for a common use. and the lease is silent, another portion should not be held to be annexed to a particular tenement unless the intent of the parties to annex it appears with reasonable certainty.

There was no direct testimony upon this issue, and so the question is: Was there a reasonable...