Hunkins v. Amoskeag Mfg. Co.

• Decision Date: 07 November 1933
• Citation: 169 A. 3
• Parties: HUNKINS v. AMOSKEAG MFG. CO.
• Court: New Hampshire Supreme Court

169 A. 3

HUNKINS

v. AMOSKEAG MFG. CO.

Supreme Court of New Hampshire. Hillsborough.

Nov. 7, 1933.

Transferred from Superior Court, Hillsborough County; Young, Judge.

Case for negligence by Catherine Hunkins against the Amoskeag Manufacturing Company. Judgment of nonsuit. Case transferred on exceptions by plaintiff.

New trial.

Case, for negligence. Trial by jury. The plaintiff excepted to the granting of the defendant's motion for a nonsuit. Exceptions were also taken to the admission and exclusion of certain evidence.

On June 24, 1929, the plaintiff, while working for a Mrs. Waite, who was a tenant of the defendant, was struck and injured by falling plaster. The premises (a lodging house in Manchester) consisted of the two middle sections of a brick block which was divided perpendicularly into four apartments. The block was built on rising ground, each apartment, including roof and cornice, being at a different level. Low harriers, apparently extensions of the dividing walls, separated the sections of the roof. Each section was gravel-surfaced, flat and slightly pitched, with a drainpipe at its lowest point. The roof could be reached from inside the building through scuttles at the ends of the block. The loosening of the plaster was caused by a leak in the roof. Other facts are stated in the opinion.

Sullivan & Sullivan, of Manchester (Frederic Parker, of Manchester, orally), for plaintiff.

Wyman, Starr, Booth & Wadleigh, of Manchester (R. P. Booth, of Manchester, orally), for defendant.

MARBLE, Justice.

It is "the well-settled rule that a landlord is under no legal duty to repair the leased premises" (Gobrecht v. Beckwith, 82 N. H. 415, 417,135 A. 20, 52 A. L. R. 858, and cases cited), provided, of course, he is not so obligated by the express terms of the tenancy. But, even then, a breach of his obligation does not render him liable in an action of tort for negligence. Dustin v. Curtis, 74 N. H. 266, 67 A. 220, 11 L. R. A. (N. S.) 504, 13 Ann. Cas. 169; Petroski v. Mulvanity, 78 N. H. 252, 99 A. 88.

The rule is otherwise, however, if the landlord, being under no contractual duty to repair the demised premises, chooses nevertheless to undertake that work. "The person voluntarily and gratuitously making repairs upon another's premises, whether as landlord or in any other capacity, whether the premises are occupied by his tenant or by an owner, is * * * bound to take reasonable care therein, so that his act may not endanger those whom he should expect to use the premises, and if he creates a danger and that danger results in injury, he is liable therefor." Bohlen, Landlord and Tenant, 35 Harv. Law Rev. 633, 651. See, also, Rowan v. Amoskeag Mfg. Co., 79 N. H. 409, 410, 109 A. 561; 36 C. J. 218.

It is also a well-established principle of law that "a possessor of land, who leases a part thereof and retains in his control any other part which is necessary to the safe use of the leased part, is subject to liability to his lessee and others lawfully upon the land in the right of the lessee for bodily harm caused to them by a dangerous condition upon that part of the land retained in the lessor's control, if the lessor by the exercise of reasonable care (a) could have discovered the condition and the risk involved therein, and (b) could have made the condition safe." Restatement, Torts (Tent. Draft No. 4), § 231. See, also, Knowles v. Exeter Mfg. Co., 77 N. H. 268, 90 A. 970.

There is no evidence concerning the terms of Mrs. Waite's tenancy. It does not appear whether she occupied the premises under a written lease or an oral contract of letting. The plaintiff bases her right to recover squarely on the proposition that the division of the building into apartments and its occupancy by different tenants, coupled with the conduct of the defendant in making repairs, constituted evidence on which a jury might properly find that the defendant retained exclusive control of the roof.

At the same time, she contends that there was sufficient evidence to justify a verdict in her favor on the first as well as the second of the theories of liability outlined above.

It could be found that the defendant, two weeks before the accident, sent employees to repair the roof on notice from Mrs. Waite that repairs were needed. Neither Mrs. Waite nor the workmen testified. The extent of the work done and the manner of its performance are left wholly to conjecture. Nor is there any evidence that the leak which caused the plaintiff's injury was the same leak which the workmen were asked to repair. The necessary connection between the injury and the negligence charged is therefore wholly lacking. Watkins v. Hustis, 79 N. H. 285, 109 A. 713, Rowan v. Amoskeag Mfg. Co., 79 N. H. 409, 411, 109 A. 561.

Moreover, the theory of an assumed undertaking is entirely inconsistent with the plaintiff's claim that "control of the roof was actually lodged in the landlord." Plaintiff's coun...