Miles v. Janvrin
| Decision Date | 25 November 1907 |
| Citation | 82 N.E. 708,196 Mass. 431 |
| Parties | MILES v. JANVRIN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Jas A. McGeough, for plaintiff.
Harriman & Perkins, Wm. M. Robinson, and J. W. Ramsey, for defendant.
It was held by this court in Tuttle v. Gilbert Manuf. Co., 145 Mass. 169, 13 N.E. 465, that a landlord was not liable for personal injuries suffered by a tenant by reason of the omission on the part of the landlord to repair the floor of a barn which he had agreed to repair as part of the contract of a lease of the barn. And the general doctrine was laid down there that a negligent omission to repair the premises of another is not the ground of an action of tort. The same conclusion was reached in Cavalier v. Pope, [1905] 2 K. B. 757; s. c. on appeal, [1906] A. C. 428; Brodtman v Finerty, 116 La. 1103, 41 So. 329. See, also Collins v. Karatopsky, 36 Ark. 316, 324. These were all cases where the agreement made by the landlord was to make specific repairs.
The presiding judge in the case at bar instructed the jury that there was a difference between an agreement by a landlord to make a specific repair and an agreement by him to keep the demised premises in repair generally during the term of the lease, and that the defendant's liability in the case at bar depended upon the question whether the defendant agreed to put the steps here in question in repair or whether he agreed to keep them in repair generally during the term of the lease.
In our opinion, however, a tenant does not go far enough to charge a landlord in tort for personal injuries caused by an omission to make needed repairs, when he has made proof that the landlord agreed, as one of the terms of the demise, to keep the premises in question in repair generally during the term of the lease. To charge a landlord in tort for personal injuries caused by a negligent omission to make needed repairs, not only must the tenant prove that the landlord agreed to keep the premises in repair, but he must go one step further and prove that the landlord agreed to maintain the premises in a safe condition for his (the tenant's) use. That is to say, he must prove that during the term of the lease, so far as their safety is concerned, the premises to be kept in repair are to remain in the control of the landlord (as they would have remained had there been no lease), with nothing but a right in the tenant to use them. In short, that, so far as their safety is concerned, the landlord's relation to the premises to be kept in repair is the same as that of a landlord in case of common passageways in a tenement house, as to which see Domenicis v. Fleisher (Mass.) 81 N.E. 191, and cases there collected; the only difference being that in a case like the case at bar the tenant has an exclusive use, while in case of common passageways in a tenement house the use which the several tenants have is not exclusive.
The difference between the two cases is plain. To take the case now before us: It is one thing to agree to maintain a flight of steps for the use of a tenant in going to and from the house of which he has a lease, even where the steps are a part of the premises let; it is another thing to demise and let to him the steps as part of the premises of which the house is the main thing, and agree to keep the steps in repair.
In the first of these two cases it is within the contemplation of the parties to the contract that the tenant of the house is to have a right to use the steps on the footing that they are safe at all times during the period covered by the agreement. In the second, if the landlord omits to make needed repairs when he ought to make them, the tenant has no right to use the premises which ought to have been repaired on the footing that they are in a safe condition; his right against the landlord in such a case goes no further than to have the repairs made at his landlord's expense. In respect to what is within the contemplation of the parties, there is no difference between a contract by the landlord to keep the premises of his tenant in repair generally during the term of the lease and a contract by a landlord to make specific repairs on the premises of the tenant. We repeat: There is a difference between a landlord's agreeing to maintain the premises in a safe condition for the tenant's use and a contract to keep the tenant's premises in repair.
We have said that the landlord is liable if he has agreed to maintain a flight of steps for the use of a tenant in going to and from the house of which he has a lease, even when the steps are a part of the premises let. That requires a word of explanation. Where the arrangement between the landlord and the tenant is that during the term of the lease the landlord is to be responsible for the safety of a flight of steps which leads from the highway to the demised house, the direct way of carrying that arrangement into effect would be to give the tenant nothing but a right to use the steps. This would leave the steps in the control of the landlord, and being in his control with an agreement to keep them in repair, the case would come within the principle of Domenicis v. Fleisher (Mass.) 81 N.E. 191, and within the decision in Miller v. Hancock, [1893] 2 Q. B. 177. But in such a case it is possible for the parties to carry out that arrangement by including the flight of steps in the premises demised with an agreement by the landlord to become absolutely liable for the maintenance of the steps in a safe condition during the term of the lease. If such a contract were made by a stranger (for example by a carpenter) the contract would put the flight of steps in the control of the carpenter during the term of the lease, so far as necessary to insure their being in a safe condition, on the principle applied in Quinn v. Crimmings, 171 Mass. 255, 50 N.E. 624, 42 L. R. A. 101, 68 Am. St. Rep. 420, and Wixon v. Bruce, 187 Mass. 232, 72 N.E. 978, 68 L. R. A. 248. There is nothing to prevent the same contract being made to carry out the arrangement between a landlord and tenant stated above, although, as we have said, the direct way of carrying out such an arrangement would be to give the tenant a right to use the steps only.
In the following cases the rule of Tuttle v. Gilbert Manuf. Co., 145 Mass. 169, 13 N.E. 465, was applied to agreements to keep the tenant's premises in repair generally throughout the term of the tenant's lease. Davis v. Smith, 26 R.I. 129, 58 A. 630, 66 L. R. A. 478, 106 Am. St. Rep. 691; Burdick v. Cheadle, 26 Ohio St. 393, 20 Am. Rep. 767; Brown v. Toronto General Hospital, 23 Ont. 599.
The law in New York seems to be in accordance with these cases. Frank v. Mandel, 76 A.D. 413, 78 N.Y.S. 855; May v. Ennis, 78 A.D. 552, 79 N.Y.S. 896; Stelz v. Van Dusen, 93 A.D. 358, 87 N.Y.S. 716; Sherlock v. Rushmore, 99 A.D. 598, 91 N.Y.S. 152; Boden v. Scholtz, 101 A.D. 1, 91 N.Y.S. 437; Hagin v. Cayuga Lake Cement Co., 105 A.D. 269, 93 N.Y.S. 428; Dancy v. Walz, 112 A.D. 355, 98 N.Y.S. 407. See, also, in this connection, San Filippo v. American Bill Posting Co., 188 N.Y. 514, 81 N.E. 463, and Reynolds v. Van Beuren, 155 N.Y. 120, 49 N.E. 763, 42 L. R. A. 129, and cases there collected.
Before the case of Cavalier v. Pope, ubi supra, there was authority in England to the contrary. It was stated by Lopes, J. (as he then was), in Nelson v. Liverpool Brewery Co., 2 C. P. D. 311, 313, that if the landlord was under an obligation to make exterior repairs an employé of the tenant could recover for injuries caused by his failure to make needed repairs on a chimney top which fell and caused the injuries to the tenant's employé there complained of. The plaintiff in that case undertook to make out an obligation on the landlord to make exterior repairs by showing a custom by which exterior repairs were made by landlords. The case went off on the ground that all that was proved there was a practice among landlords to make external repairs for their own interest, and that a custom making it obligatory on a landlord to make such repairs was not proved. On the authority of this statement, however, it was ruled by Phillimore, J., in Cavalier v. Pope, that a landlord who had agreed to repair the floor of the kitchen let to the plaintiff's husband in consideration of the husband's agreeing to continue his lease of the premises, was liable for injuries suffered by the tenant's wife in falling through the floor which had not been repaired by the landlord in accordance with this agreement. That the original ruling made by Phillimore, J., in Cavalier v. Pope, was made on the authority of this statement in Nelson v. Liverpool Brewery Co. See Collins, M. R. [1905] 2 K. B., at page 762, and Lord Atkinson [1906] A. C., at page 431. This ruling was reversed in the Court of Appeals, Cavalier v. Pope [1905] 2 K. B. 757, and in the House of Lords [1906] A. C. 428; and the doctrine laid down by Lopes, J., was thereby overruled.
There is a case in the Circuit Court of the United States for the Southern District of New York (Moore v. Steljes [C. C.] 69 F. 518) in which it was held that a landlord who had agreed to keep the leased premises in repair was liable for injuries suffered by one entering under the tenant, because the cause of the injury in that case antedated the lease. That is to say, because the premises let were a nuisance when let. In the opinion of Wheeler, J., in that case, the liability of the landlord in such a case to a third person was discussed. But there is no discussion there as to the proposition that one entering under the tenant stands on the same footing as a third person in that connection. That is assumed in that opinion without discussion.
If Moore v. Steljes were law in...
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