Fiorntino v. Mason

• Decision Date: 11 September 1919
• Citation: 124 N.E. 283,233 Mass. 451
• Parties: FIORNTINO v. MASON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

233 Mass. 451

124 N.E. 283

FIORNTINO

v.MASON.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 11, 1919.

Exceptions from Superior Court, Suffolk County; John H. Brown, Judge.

Action by Mary Fiorntino against Frank Mason, trustee. Verdict for plaintiff, and defendant excepts. Exceptions sustained, and judgment ordered for defendant.

Daniel H. Coakley and W. Jennings Patron, both of Boston, for plaintiff.

Charles S. Knowles, of Boston, for defendant.

RUGG, C. J.

The plaintiff occupied as tenant at will the second floor of a house of the defendant. A part of the premises let to her was a platform with outside uncovered steps. There was evidence tending to show that the plaintiff while carefully descending the steps was injured by reason of their defective condition.

The kinds of relations between landlord and tenant which have arisen in our decisions out of oral contracts establishing a tenancy at will may be divided into three general classes:

First. The ordinary oral contract for tenancy at will without further agreement. The respective rights and obligations of the landlord and tenant under such a contract for a tenancy at will are well settled. There is no implied agreement, apart from fraud, that the demised premises are or will continue to be fit for occupancy or safe and in good repair. The tenant takes the premises as he finds them and there is no obligation on the landlord to make repairs. The landlord is not liable for injuries arising from a defective condition unless he has undertaken to make repairs and has made them negligently. Kearines v. Cullen, 183 Mass. 298, 67 N. E. 243;Mackey v. Lonergan, 221 Mass. 296, 108 N. E. 1062, L. R. A. 1916F, 1098.

Second. The parties may agree that the landlord shall make necessary repairs during the tenancy and thus vary the rights and obligations implied by the law as part of the ordinary relation of tenancy at will. An agreement to repair as a part of the letting is an agreement to make repairs on notice. Failure to comply with such agreement gives rise merely to a right of action for breach of contract, where the damages commonly are only the cost of making the repairs. A negligent omission to repair is not ground for an action of tort. Tuttle v. Gilbert Manufacturing Co., 145 Mass. 169, 13 N. E. 465. The landlord under such a contract is not liable for personal injuries resulting from a defective condition of the premises unless he makes repairs and makes them negligently. Conahan v. Fisher, 233 Mass. 234, 124 N. E. 13, where cases are collected.

Third. The parties may make a still different agreement to the effect that the landlord shall keep and maintain the premises in a condition of safety on his own responsibility and without reference to notice from the tenant of defective conditions, and by virtue of the agreement for letting shall have and constantly retain such possession of the premises as in necessary for that purpose. It is one thing for a landlord to agree with a tenant that he will make repairs on the demised premises on notice that repairs are needed. That is an agreement of the second class. It is quite another and different thing for a landlord to agree that he continuously undertakes to keep the demised premises in repair and to relieve the tenant from any attentioin or thought respecting notice from any attention or thought respecting notice may be as care free respecting the condition of the demised premises as is the guest in a hotel respecting the room assigned for his occupancy. Under such an agreement the landlord assumes the duty of looking after the tenement as to safety and retains so far as necessary to that end the possession thereof and the right to enter upon it at all times. There is nothing impossible in fact or law about such an agreement. Miles v. Janvrin, 196 Mass. 431, 82 N. E. 708,13 L. R. A. (N. S.) 378, 124 Am. St. Rep. 575;Id., 200 Mass. 514, 86 N. E. 785. It is, however, a most onerous undertaking. See Ryall v. Kidwell [1914] 3 K. B. 135, 142. It is not made out by a simple agreement that the landlord will keep the premises in repair. That means no more than that he will keep them in repair on notice from the tenant. Such an agreement is of the second class. An agreement of the third class goes much further. It can be supported and proved only by evidence far more explicit than a mere general agreement to maintain in repair. It imposes an obligation on the landlord to enter upon the demised premises at all reasonable times for the purpose of inspection and ascertainment of any defective condition. The landlord thereby assumes direct and initial responsibility for the condition of the premises as to safety at all times. Under such an agreement liability devolves upon the landlord for any failure reasonably to discover and remedy a defect or want of repair whereby injury ensues to any person to whom he owes the duty to inspect, discover and repair defects.

In the case at bar the plaintiff as tenant at will of the defendant seeks to recover by virtue of a contract of the third class. Confessedly she has no right of action under the first or second classes of contracts. The only point to be decided is whether there is any substantial evidence of a contract of that kind.

The plaintiff's testimony respecting her contract with the defendant was this:

‘He says: ‘Don't worry; move in and I will fix it up in good condition and good order and safe, and don't be worried.’ * * * Q. What did he say about...