Jacobson v. Leventhal

• Decision Date: 09 January 1930
• Citation: 148 A. 281
• Parties: JACOBSON v. LEVENTHAL (two cases.)
• Court: Maine Supreme Court

148 A. 281

JACOBSON

v. LEVENTHAL (two cases.)

Supreme Judicial Court of Maine.

Jan. 9, 1930.

Exceptions from Supreme Judicial Court, Kennebec County.

Actions by Lena Jacobson and by Phillip Jacobson against Charles Leventhal. Nonsuits were ordered, and plaintiffs bring exceptions. Exceptions overruled.

Argued before DEASY, C. J., and DUNN, STURGIS, BARNES, PATTANGALL, and FARRINGTON, JJ.

Arthur D. Welch, of Portland, for plaintiffs.

Robinson & Richardson, of Portland, for defendant.

DEASY, C. J. In 1927 Phillip Jacobson became the tenant of an apartment on Water street, Portland, under a lease from the defendant.

In passing down a stairway leading to a cellar, which was a part of the leased premises, Lena Jacobson, wife of the tenant, broke through a defective stair tread and suffered injuries.

These actions of tort for negligence were brought. The judge of the superior court ordered a nonsuit. The case comes forward on plaintiffs exceptions.

The alleged defective stairway was not a common stairway remaining in the lessor's possession and control for the care and repair of which he is responsible, as in Sawyer v. McGillicuddy, 81 Me. 318, 17 A. 124, 3 L. R. A. 458, 10 Am. St. Rep. 260.

It is not contended that the injury was due to a latent defect known to the lessor who failed to call it to the attention of the tenant, as in Minor v. Sharon, 112 Mass. 487, 17 Am. Rep. 122; nor that the defendant had made repairs to the stairway in a negligent manner, as in Gregor v. Cady, 82 Me. 131, 19 A. 108, 17 Am. St. Rep. 466.

The theory of the plaintiff's counsel is that the defendant is liable in tort by reason of the admitted fact that at or before the leasing the defendant promised and agreed with the plaintiff Phillip Jacobson that he (the defendant) would repair the defective cellar stairway. The defendant's counsel not questioning the making of the alleged agreement, nor its binding force as a contract, contends that he is not liable in tort for negligence, but at most only for breach of contract, and that the Injury suffered by Mrs. Jacobson is not an element of damage for which he is responsible, for the reason that such a consequence could not have reasonably been anticipated when the contract was made.

The defendant's position is supported by what we deem the better judicial authority.

If the lessor contracts to repair premises in the possession and under the control of his tenant, his liability is no greater or different than would be the liability of a third party, e. g., a carpenter or other mechanic who contracts to make such repairs.

That this is the rule prevailing in many jurisdictions is not questioned by the plaintiff's learned counsel, but he argues that by a series of decisions and dicta the court of Maine shows or indicates a disagreement with such rule.

The general principle, not questioned by either party, is that a tenant takes the leased premises for better or for worse, with no obligation on the part of the lessor to make repairs. The liability for injuries caused by a dangerous concealed defect, known to the lessor and not made known to a tenant, is an exception to this rule. The lessor's liability for the safe condition of common passageways and stairways is not an exception, since the lessor retains the possession and control, and it is only the use in common that is demised.

In stating the general rule, the Court of Maine has sometimes added such language as "unless he [the lessor] has made an express valid agreement [to make repairs]," Bennett v. Sullivan, 100 Me. 118, 60 A. 886, Hill v. Hay, 108 Me. 467, 81 A. 581, 582, Ann. Cas. 1913C, 971, and in Miller v. Hooper, 119 Me. 528, 112 A. 256, 257, it is said that he (the lessor) "must make such repairs as he expressly agrees to make."

These quoted passages cannot be objected to as unsound, but there is nothing in them nor in the cases cited indicating that a lessor who contracts to repair leased premises and thus becomes charged with the contractual duty, if he breaks the contract, is liable in tort for negligence.

Other cases cited by the plaintiffs counsel are Campbell v. Portland Sugar Co., 62 Me. 552, 16 Am. Rep. 503; Toole v. Beckett, 67 Me. 544, 24 Am. Rep. 54; McKenzie v. Cheetham, 83 Me. 550, 22 A. 469; Smith v. Preston, 104 Me. 156, 71 A. 653, 656: Milford v. Bangor Ry. & Electric Co., 104 Me. 233, 71 A. 759, 30 L. R. A. (N. S.) 531.

The opinion in Smith v. Preston, supra, states the rule of liability thus: "In all the cases the criterion of liability is the obligation to maintain and repair with the right of control for that purpose."

Thus a lessor being under legal obligation to maintain and repair common passageways and stairways, and having the right of control for the purpose, may...