Gobrecht v. Beckwith

Decision Date05 October 1926
Citation135 A. 20
PartiesGOBRECHT v. BECKWITH (two cases).
CourtNew Hampshire Supreme Court

Exceptions from Superior Court, Sullivan County; Burque, Judge.

Two actions on the case, one by Stella F. Gobrecht and the other by William E. Gobrecht, both against Hira R. Beckwith. On defendant's exceptions. Exceptions overruled.

Two actions on the case for negligence which were tried by jury before Doe, J., with I verdicts for both plaintiffs.

The plaintiff William E. Gobrecht was a tenant of the defendant, occupying one room on the third floor of a block owned by the latter in Claremont. The plaintiff Stella is his wife. Upon the same floor the defendant maintained a bathroom for the common use of the female tenants of the block. The dimensions of this room were approximately 9x7x12 feet it was an inside room without windows. It had two doors, one of which was unused, and one transom over the unused door. When the doors were closed, this transom was the only means of ventilation. Hot water was supplied by an instantaneous gas heater attached to a 20-gallon storage tank. This heater was installed in the bathroom without a flue, and was operated by gas furnished by the local gas company, which was of the variety known as water gas, containing 30 to 40 per cent. of carbon monoxide, an extremely poisonous gas.

Upon December 19, 1922, shortly after she had gone into the bathroom to take a bath, Mrs. Gobrecht was found lying on the floor unconscious, and the physician who attended her made a diagnosis of "gas poisoning or asphyxiation." It was the claim of the plaintiffs that her condition was due to the presence of carbon monoxide in the bathroom as a result of the operation of the heater, and that as a consequence her health was permanently impaired. In her suit she seeks to recover damages for this injury. Her husband sues to recover for the loss of her services and the expenses incurred as a result of the accident. Further facts appear in the opinion.

The defendant excepted to the denial of his motions for nonsuits and directed verdicts; to certain statements in the argument of plaintiffs' counsel; to the charge of the court; and to the denial of his requests to charge as more fully stated in the opinion.

After the death of Judge Doe, a bill of exceptions was allowed by Burque, J.

Nathaniel E. Martin and Alfred W. Levensaler, both of Concord (A. W. Levensaler, of Concord, orally), for plaintiffs.

Ira G. Colby, of Claremont, and Murchie & Murchie, of Concord (Alexander Murchie, of Concord, orally), for defendant.

BRANCH, J. The defendant's requests for instructions raise a question regarding the duty of a landlord to his tenants which must be considered before his motions for directed verdicts can be passed upon.

The plaintiffs claimed that the accident was the result of a dangerous condition created and maintained by the landlord in a bathroom furnished by him for the common use of the tenants of the building. By his third, fourth, and fifth requests the defendant sought to have the court apply to this situation the well-settled rule that a landlord is under no legal duty to repair the leased premises and that, in the absence of warranty or deceit, the tenant takes the premises as he finds them, and cannot recover against the landlord for injuries sustained by reason of defects therein. Marston v. Andler, 80 N. H. 564, 122 A. 329; Petroski v. Mulvanity, 78 N. H. 252, 99 A. 88; Clark v. Sharpe, 76 N. H. 446, 83 A. 1090, 41 L. R. A. (N. S.) 47; Dustin v. Curtis, 74 N. H. 266, 67 A. 220, 11 L. R. A. (N. S.) 504, 13 Ann. Cas. 169; Cate v. Blodgett, 70 N. EL 316, 48 A. 281; Towne v. Thompson, 68 N. H. 317, 44 A. 492, 46 L. R. A. 748.

In all the cases where this rule has been applied, the accident happened because of defects in the leased premises themselves which had passed out of the control of the landlord and into the possession of the tenant. The landlord's lack of control over the premises has been stressed in all these cases, and seems to be regarded as one of the essential elements necessary to bring a case within the rule. See Stevens v. United Gas & Electric Co., 73 N. H. 159, 170, 60 A. 848, 70 L. R. A. 119. The rule has never been applied in this state to those portions of the premises over which the landlord retains control and which he furnishes for the common use of his tenants, and, although it has never been expressly decided by this court, it has been generally understood by the bench and bar that the rule which has been laid down in other jurisdictions prevails here. That rule has been stated as follows:

"It is generally held that, where he (the landlord) retains possession of a portion of the leased premises for the use in common of different tenants, a duty is by law imposed upon him to use ordinary care to keep in safe condition this particular part of the leased premises, and, if he is negligent in this regard and a personal injury results to a tenant by reason thereof, he is liable therefor." 16 R. C. L. Landlord and Tenant, § 557.

This rule has been applied in the trial of many cases in the superior court, and the reason why it has Lever been expressly stated as the basis of a decision by this court is apparently that no one heretofore thought of questioning it.

In Kambour v. Boston & M. R. R., 77 N. H. 33, 46, 86 A. 624, 631 (45 L. R. A. [N. S.] 1188), the generally accepted view of the law in this state was stated by Young, J., arguendo, as follows:

"The only duty the law imposes on a landlord for the benefit of his tenants, in so far as the leased premises are concerned, is that of not deceiving them as to the dangers incident to their use of which he does and they do not know (Cate v. Blodgett, 70 N. H. 316 [48 A. 281]); but, * * * in so far as the approaches to the premises are concerned, it is his duty to do whatever the ordinary man would do to enable them to enter and leave the premises in safety."

The recent case of Saad v. Papageorge, 81 N. H. 294, 133 A. 24, which involved an accident happening upon a common stairway, was decided upon the assumption that this was the law, and the court there said:

"The construction of the stairway was such that its use by very young children as a stairway might be found to be contemplated, and so some protection for use for that purpose would be required. The duty of care may therefore be found to be owing, although it cannot be told in detail how the intestate happened to break or fall through the defective board. If he met his mishap in connection with his descent of the stairs, the duty was applicable."

The law of this state therefore cannot be regarded as doubtful. The general rule above quoted prevails here.

This conclusion disposes of defendant's third, fourth, and fifth requests and also of his first request, in which the court was asked to take a middle ground and charge the jury that:

"If the defects complained of existed * * * when the tenancy began and there was no change made thereafter, the defendant is not liable."

The foregoing conclusion also disposes of the exceptions to the charge, which were all based on the theories of the law set forth in the above requests.

Defendant's second and sixth requests dealt with the subject of contributory negligence. The rule upon this point was correctly stated in the charge, and there was no error in the denial of these requests.

Defendant's seventh request purported to state what would constitute ordinary care in this case. The jury was fully instructed as to the significance of the terms "negligence" and "reasonable care," and there was no error in the denial of this request.

The law being as above stated, it remains to consider the defendant's motions for directed verdicts. He argues that these motions should have been granted "for two reasons, viz.: (a) There was not sufficient evidence to warrant the jury in finding that the defendant's negligence caused the injuries complained of; and (b) the plaintiff (Stella P.) was conclusively shown to have been guilty of contributory negligence."

The consideration of defendant's first proposition (a) involves two inquiries: (1) Was there evidence of negligence? (2) Was there evidence that the alleged negligence caused the accident?

What was the evidence of defendant's fault? A chemist who was called by the plaintiff as an expert on gases testified that when water gas is burned in a gas heater carbon monoxide will always be released if there is imperfect combustion, and that even with a perfect burning flame some of this gas is likely to be formed when the flame strikes a cold surface; that in his opinion it would not be safe to install such a heater without a...

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