Flanders v. New Hampshire Sav Bank
| Decision Date | 22 June 1939 |
| Citation | 7 A.2d 233 |
| Parties | FLANDERS v. NEW HAMPSHIRE SAV BANK (two cases). |
| Court | New Hampshire Supreme Court |
[Copyrighted material omitted.]
Transferred from Superior Court, Merrimack County; Burque, Judge.
Actions for negligence by Percy H. Flanders, administrator, against the New Hampshire Savings Bank for personal injuries suffered by plaintiff's deceased wife, and by Percy H. Flanders against the same defendant for the consequential loss to plaintiff from his wife's injuries. Verdicts for plaintiffs.
Case transferred on plaintiffs' exceptions to an order entered after the jury's verdicts directing verdicts for defendant and made upon reconsideration of motions therefor seasonably made.
Judgments for defendant.
Actions, for negligence. Trial by jury and verdicts for plaintiffs. The plaintiff administrator's action is for personal injuries suffered by his deceased wife, and his individual action is for his consequential loss from her injury.
The defendant owned a two tenement building in Concord on the south side of Perley Street. The plaintiff husband was the tenant of the easterly tenement under an oral lease from month to month. A dividing wall at right angles to the street made a physical separation of the building for occupancy by the tenants. Each part had its own approaches, porches, entrances, areaways and hallways, and there was no use in common of any part of the building by the respective tenants. In the rear of the building was a yard entered from the building by a separate doorway and steps from each of its two sections. There was no physical division of the yard, unless by three posts approximately in line with the dividing wall of the building and erected to support arms for the maintenance of a clothesline used by the respective tenants in apportionment as they arranged. A garage in the yard and in the rear of the part of the building occupied by the plaintiff was a part of his tenement and was in his sole possession. All of the yard was used as a playground by children living in the two tenements, and, subject to inference, by visiting children. The children were accustomed to use the back steps leading from the tenements in their social intercourse and play.
The back steps of the plaintiff's tenement were out of repair and unsafe. The intestate sustained her injury by the breaking down and giving way of one of them while she was using them in carrying clothes to the clothesline. Some months previously the plaintiff called the defendant's attention to their condition. He was asked if he could fix them and replied that he did not have the time. Nothing was done to repair them until after the accident, when he reported it to the defendant. Soon thereafter the defendant had them repaired, at the same time having other needed repairs to the building made.
The plaintiff was a tenant for about two years and nine months before the accident happened. During that time no repairs were made by the defendant. On one occasion, on application of a chimney cleaner the defendant engaged him to clean the chimneys. He found some snow and ice on the roof which needed removal and he removed it after the defendant agreed to pay for the work.
Neither when the plaintiff leased the tenement nor at any subsequent time was any express agreement made with reference to repairs.
Transferred by Burque, C. J., on the plaintiffs' exceptions to an order entered after the jury's verdicts directing verdicts for the defendant and made upon reserved reconsideration of the motions therefor seasonably made. Additional facts appear in the opinion.
Richard F. Upton, John H. Sanders, and Robert W. Upton, all of Concord, for plaintiffs.
Demond, Sulloway, Piper & Jones, of Concord (James B. Godfrey, of Concord, orally), for defendant.
This is a case of a tenement orally hired with no agreement in the terms of hiring for either the landlord or the tenant to keep it in repair. Without more being shown the landlord had no duty to repair. The plaintiffs, however, make the claim that the evidence sufficed to show the existence of the duty under the theory of retained control.
It is argued that the evidence warranted a finding that the tenants of the adjoining tenement had the right to share in the use of the steps on which the intestate fell. This position is untenable. The only common use shown was for a playground for the children living in the building. The stated terms of the plaintiff husband's tenancy included none providing for such use. Without expressing any view that the evidence would permit a finding of the use as an implied provision of the tenancy, if such a view may be assumed to be warranted, it would not help the plaintiffs. Whatever the area to which the assumed right of common use would apply, it would not extend to include the steps. Although the common use extended to them, the right to such use did not. The evidence demonstrates the plaintiff tenant's exclusive possession of them. Their use by others was within his control as a matter of his permission. Others used them as a privilege bestowed by him and not as a right granted by the landlord.
The steps are to be regarded as a part of the section of the building rented to the plaintiff tenant, and not of the open land into which they extended. Belonging to the building as a component of it, they were a part of its structural completeness. By annexation to it they became more than an appurtenance. To say that the plaintiff tenant's section of the building was rented to him but that the steps leading from it were not, would be an anomalous proposition too irrational to accept.
The steps were as much a part of his tenement as was the garage which stood in the rear of his section of the building and of which he took and held sole possession. The fact that his wife when she hired the tenement in his behalf was not shown the open area in the rear, or the steps or the garage, is of negative significance in indicating the full comprisal of the tenement or in distinction between the tenement proper and easements appurtenant to it. Argument to the contrary is inconsistent with the asserted claim to exclusive possession of the garage.
The plaintiff tenant's right to exclusive use of the steps receives convincing confirmation from the following portion of his testimony:
He thus had more than a privilege of their use in common with others.
The further claim that retained control of the steps might be proved by the landlord's conduct in having the chimneys cleaned and snow and ice removed from the roof at one time and in having repairs made after the accident is also unsupported by the evidence.
In the relation of landlord and tenant, when no use in common with...
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Sargent v. Ross
...considered dispositive of the landlord's liability. E.g., Black v. Fiandaca, 98 N.H. 33, 93 A.2d 663 (1953); Flanders v. New Hampshire Sav. Bank, 90 N.H. 285, 7 A.2d 233 (1939). This was a logical modification to the rule of nonliability since ordinarily a landlord can reasonably be expecte......
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...but that the steps leading from it were not, would be an anomalous proposition too irrational to accept.' Flanders v. New Hampshire Savings Bank, 90 N.H. 285, 288, 7 A.2d 233, 235. While it is true that the fact that the stairway was a part of the premises leased is not conclusive that the ......
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