Harris v. Lewistown Trust Co.

• Court: United States State Supreme Court of Pennsylvania
• Citation: 191 A. 34
• Parties: HARRIS et ux. v. LEWISTOWN TRUST CO. et al.
• Decision Date: 29 March 1937

191 A. 34

HARRIS et ux.
v.
LEWISTOWN TRUST CO. et al.

Supreme Court of Pennsylvania.

March 29, 1937.

191 A. 34

Appeal No. 12, May term, 1936, from judgment of Court of Common Pleas, Mifflin County; M. Ward Fleming, President Judge, Forty-ninth Judicial District, Specially Presiding.

Trespass by Joseph R. Harris and Sadie B. Harris, his wife, and employee, against the Lewistown Trust Company and others, for the recovery of damages for personal injuries sustained by Sadie B. Harris. Verdict was directed against the husband and was returned in favor of the wife for $3,758.

191 A. 35

From a judgment for the defendants non obstante veredicto, the wife appeals.

Affirmed.

Argued before KEPHART, C. J., and SCHAFFER, MAXEY, LINN, STERN, and BARNES, JJ.

Reargued before KEPHART, C. J., and SCHAFFER, MAXEY, DREW, LINN, STERN, and BARNES, JJ.

Paul S. Lehman, of Lewistown, for appellant. Harry L. Siegel, of Lewistown, for appellee.

DREW, Justice.

This is an action in trespass by Joseph R. Harris, a tenant, under a month to month lease, and Sadie B. Harris, his wife, who was also his employee in a beauty shop maintained by him on the demised premises. Damages are sought for injuries sustained by her as a result of the collapse of a cellar stairway. Named as defendants are the Lewistown Trust Company, individually and as trustee, and the beneficial owners. A verdict was directed against the husband because of his contributory negligence. Judgment non obstante veredicto was entered against the wife. She alone has appealed.

Appellant places her principal reliance upon a promise by the agent of the owner to repair. It is conceded such promise was made at the time of the negotiation of the oral lease, and subsequently repeated, and that it was never kept. The accident happened thirteen months after the tenant took possession. The stairway was in an obviously defective and decayed condition. Of this the tenant was fully aware. The wife claimed that she had no knowledge of it; that she had used the stairway but four times. We assume for the purpose of this appeal that she was not guilty of contributory negligence, although there is evidence that she was. Giving her case the aid of this assumption, we meet directly the question whether or not the owner is liable in tort by reason of this promise.

The general rule in this country, and also in England, is that an agreement to repair does not impose upon the owner a liability in tort at the suit of the tenant or others lawfully on the land in the right of the tenant: Cavalier v. Pope [1905] 2 K. B. 757; Cavalier v. Pope [1906] A.C. 428; Cameron v. Young [1908] A.C. 176; Jacobson v. Leaventhal, 128 Me. 424, 148 A. 281, 68 A.L.R. 1192; Tuttle v. George H. Gilbert Mfg. Co., 145 Mass. 169, 13 N.E. 465; Miles v. Janvrin, 196 Mass. 431, 82 N.E. 708, 13 L.R.A.(N.S.) 378, 124 Am. St.Rep. 575; Carroll v. Intercolonial Club, 243 Mass. 380, 137 N.E. 656; Kuyk v. Green, 219 Mich. 423, 189 N.W. 25; Dustin v. Curtis, 74 N.H. 266, 67 A. 220, 11 L.R.A.(N.S.) 504, 13 Ann.Cas. 169; Cullings v. Goetz, 256 N.Y. 287, 176 N.E. 397, 398; Davis v. Smith, 26 R.I. 129, 58 A. 630, 66 L.R.A. 478, 106 Am.St.Rep. 691, 3 Ann.Cas. 832; Trickett, Landlord and Tenant (2d Ed.) 726.

Fundamentally, this view is based upon the conclusion that liability in tort should follow as a legal incident of occupation and control: Restatement of the Law of Torts, § 357, Comment (a). By the great weight of authority, occupation and control are not reserved through an agreement by the owner to repair: Cavalier v. Pope [1906], supra; Pollock, Torts (13th Ed.) 532; Salmond, Torts (8th Ed.) 251 et seq.; Cullings v. Goetz (1931) supra. As was said by the then Chief Judge Cardozo in the Cullings Case, "The tenant and no one else may keep visitors away till the danger is abated, or adapt the warning to the need. The landlord has at most a privilege to enter for the doing of the work, and at times not even that if the occupant protests. 'The power of control necessary to raise the duty * * * implies something more than the right or liability to repair the premises. It implies the power and the right to admit people to the premises and to exclude people from them.' Cavalier v. Pope [(1906) A.C. 433]."

A minority of jurisdictions takes an opposite view, holding that the promise to repair is a reservation of control over the premises. Barron v. Liedloff, 95 Minn. 474, 104 N.W. 289; Flood v. Pabst Brewing Co., 158 Wis. 626, 149 N.W. 489, L.R.A.1916F, 1101. The Restatement, Torts, § 357, is in accord with this view. Robinson v. Heil, 128 Md. 645, 98 A. 195, and Merchants' Cotton Press & Storage Co. v. Miller, 135 Tenn. 187, 186 S.W. 87, L.R.A.1916F, 1137, would seem to support the same view. In Cullings v. Goetz, supra, it is pointed out that "the fount and origin of whatever has been said anywhere as to the enlargement of liability by a covenant to repair is an early case in England (1794) 2 H.Bl. 350, 'the unsatisfactory

191 A. 36

case of Payne v. Rogers.' Salmond, Torts (7th Ed.) 279." Even in England Payne v. Rogers has been narrowly restricted by Cavalier v. Pope, supra, which, indeed, would deny recovery here. It is very questionable if Payne v. Rogers, discredited in the jurisdiction of its origin, is now authority for anything. Salmond, supra (8th Ed.) 253.

Appellant relies upon Zimmerman v. Homer Building & Loan Association, 111 Pa.Super. 345, 170 A. 703. That was an action in trespass to recover for personal injuries. The testimony there disclosed that defendant had promised to repair and had done so negligently. There can be no doubt that a landlord undertaking to repair the premises leased, and repairing them negligently thereby causing injury is liable for his tort. Tarnogurski v. Rzepski, 252 Pa. 507, 97 A. 697; Rehder v. Miller, 35 Pa.Super. 344; Gill v. Middleton, 105 Mass. 477, 7 Am.Rep. 548; Gregor v. Cady, 82 Me. 131, 19 A. 108, 17 Am.St.Rep. 466; Rowan v. Amoskeag Mfg. Co., 79 N.H. 409, 109 A. 561; Marks v. Nambil Realty Co., Inc., 245 N.Y. 256, 157 N.E. 129; Smith v. Tucker, 151 Tenn. 347, 270 S.W. 66, 41 A.L.R. 830. This is so even though the undertaking was gratuitous since the root of the liability imposed is not the undertaking or promise, but the making of the repairs in such a way as to create an unreasonable risk of harm to those in plaintiff's position. It is true that the opinion in the Zimmerman Case contains language—not necessary to the decision— which might conceivably be construed to rest recovery upon the alternative grounds (111 Pa.Super. 345, at page 347, 170 A. 703) of either the landlord's failure to keep a promise to repair or "if he did repair, in doing the work in a careless and negligent manner." If the result were not supported by the second ground, we would unhesitatingly disapprove that case. But since the action was trespass and recovery was allowed on the ground of negligence, it was in accordance with the established law and does not sustain appellant's contention.

There is no appellate decision directly on the point in this commonwealth.¹ We adopt the prevailing doctrine because it is sound in reason and supported by a preponderance of juridical opinion in this country and in England.

Where the cause arises merely from failure to keep a. promise to repair, the remedy is in assumpsit. To found an action in trespass, there must be some breach of duty apart from nonperformance of the promise. When the action is assumpsit and the promisee the plaintiff, under certain circumstances, recovery has been allowed for damage to the tenant's goods. Ehinger v. Bahl, 208 Pa. 250, 57 A. 572; Gabai v. Krakovitz, 98 Pa.Super. 150.

From what has been said, it must be obvious the tenant could not recover if he had been injured. We have held repeatedly that a tenant takes the property as he finds it, with all existing defects which he knows or can ascertain by reasonable inspection.² This is so even though the premises are in a condition called ruinous. Robbins v. Jones, 15 CB. (N.S.) 221, 240. Where the entire possession and enjoyment of property is transferred by landlord to tenant, the rule of caveat emptor applies. As was said by Mr. Justice Sharswood in Moore v. Weber, 71 Pa. 429, 10 Am.Rep. 708, "The lessee's eyes are his bargain. He is bound to examine the premises he rents, and secure himself by covenants, to repair and rebuild."

A well-recognized exception to this rule exists...