Mitchell v. Stewart

• Decision Date: 21 July 1898
• Docket Number: 147
• Citation: 40 A. 799,187 Pa. 217
• Parties: T. M. Mitchell, Appellant, v. D. S. Stewart, Attorney in Fact for Elizabeth Stewart, J. C. Work, Administrator d.b.n.c.t.a. of Elizabeth Stewart, deceased, and Anna H. Stewart, Administratrix of D. S. Stewart, deceased
• Court: Pennsylvania Supreme Court

40 A. 799

187 Pa. 217

T. M. Mitchell, Appellant, v. D. S. Stewart, Attorney in Fact for Elizabeth Stewart, J. C. Work, Administrator d.b.n.c.t.a. of Elizabeth Stewart, deceased, and Anna H. Stewart, Administratrix of D. S. Stewart, deceased

No. 147

Supreme Court of Pennsylvania

July 21, 1898

Argued May 10, 1898

Appeal, No. 147, Jan. T., 1898, by plaintiff, from order of C.P. Fayette Co., June T., 1892, No. 386, refusing to take off nonsuit. Affirmed.

Trespass to recover damages for personal injuries.

The facts appear by the opinion of the court below and of the Supreme Court.

At the trial the court entered a compulsory nonsuit, which it subsequently refused to take off, MESTREZAT, J., filing an opinion in part as follows:

This application is to strike off the non-suit. The following appear to be the facts, as disclosed by the testimony at the trial: The defendant leased to William P. Jackson two hotel properties, known as the "Ohiopyle house" and the "Fern Cliff Park hotel," at the village of Ohiopyle, in Stewart township. The lease began on April 1 1891, and was to expire January 1, 1892. This lease was made with the understanding with the defendant that T. M Mitchell, son-in-law of Jackson, was to take the Fern Cliff Park hotel and pay the rent to the defendant. In the latter part of April, 1891, Mitchell, with his servants, commenced to clean and put the hotel in condition for occupancy, and during that time stayed there at night. The second week of May following he moved into the hotel. The Fern Cliff Park hotel was lighted by a gas plant that had been placed there about ten years prior to the accident by which the plaintiff was injured. The gas was manufactured from gasoline. For safety, the generator had been placed about one hundred feet from the building. The gas was conducted to the house through a pipe which entered the cellar through the wall and about two or three feet below the floor. Inside the cellar there was a joint in the pipe quite near the wall. In the cellar was an air pump, a part of the gas apparatus, to which a large weight was attached, which was required to be kept wound up. When wound it would run not quite one night. The cellar was sixteen by twenty feet, was dark, had no windows or outside doors, and was entered only from the kitchen by a stairway leading down therefrom. It contained the air pump and gas pipes and nothing else. Prior to this accident the plaintiff had resided at Ohiopyle, or in the vicinity thereof, about all his life. He was familiar with the hotel, had been there often before he took possession of it and knew how it was lighted and the means of producing the gas for that purpose. During the time that he was cleaning up the property, preparatory to removing, he was in the cellar several times putting it in shape. On the second or third of May, 1891, Mr. Pinnard a plumber, and the plaintiff went into the cellar and examined the gas apparatus. Pinnard told the plaintiff the gas pipes looked bad and he had better have them fixed and not to turn on the gas until they were tested. This was communicated to Stewart by Pinnard and Mitchell. The plaintiff also told Stewart that the water pipes through the house were frozen and leaking and that the gas pipe and weight that forced the air through the generator were broken down and the pipe leaked. Stewart said he would have them fixed. This conversation took place when the plaintiff told Stewart what the plumber had said, and after the plaintiff had removed to the house.

Two or three times the plaintiff made attempts to light the house, but each time the lights would rise and fall, indicating something wrong with the gas apparatus. The plaintiff thought there was something wrong with the gas pipes, and that "it was dangerous." He called Stewart's attention to this action of the gas on the morning of May 29, and Stewart said he would have it fixed, that there was nothing wrong with the pipes, and that the action of the gas was caused by air in the pipes. At that time, Stewart told the plaintiff to get the "book of instructions" and it would teach him how to work the gas apparatus. The plaintiff got the book and read it. Among the "cautions" in this book which the plaintiff read were the following: "It is dangerous to approach the gas vault with a light. Never fill the gas generator except during daylight and do not approach with a light while filling." About 9 o'clock on the evening of May 29, 1891, Mr. Liston, who was assisting the plaintiff about the hotel, went to the cellar and wound up the gas weight. The gas was then turned on, but it gave the same unsteady, flickering light as on prior occasions when the plaintiff had attempted to use it. Between 10:30 and 11 o'clock, the plaintiff with a common tin lantern, lighted and burning oil, started for the cellar "to wind the generator up," as he supposed it had run down and thereby caused the trouble with the gas. He had descended only to the second step on the stairway leading to the cellar when he smelt the gas and saw it on fire. An explosion followed immediately by which the plaintiff was badly injured and the hotel was damaged.

After the accident, the defendant called to see the plaintiff. The first time was the morning after the explosion and at the plaintiff's room. Stewart then told the plaintiff that the explosion was not his fault, but was Stewart's. On the Monday following the accident, Stewart saw the plaintiff again and said to him that he would make everything all right, that it was his negligence and that he "had neglected it too long. . . ."

Five or six weeks after the accident an investigation was being made in the cellar by Stewart, Mitchell and Jackson to ascertain the cause of the explosion, and a leak was discovered in a joint of the gas pipe, next to the wall. This is presumed to have been the cause of the explosion, but the evidence does not show that, prior to this discovery, Mr. Stewart knew of this defect in the pipe. But the evidence does disclose the fact that Mitchell knew as much, if not more, about the condition of the gas pipes in the cellar than Stewart did. . . .

The evidence shows no negligence on the part of the defendant. His agreement did not require him to repair, and hence the injuries received by the plaintiff by reason of the defective gas pipes do not convict him of negligence. That the defendant thought and said that his negligence caused the plaintiff's injuries is not sufficient to impose responsibility, when the facts on which he based this opinion and which are disclosed by the evidence clearly show no legal liability. On the other hand, the plaintiff was guilty of contributory negligence. That fact indisputably appears from his own evidence. . . . The "caution" he read in the "book of instructions" the day preceding the evening of the explosion, warned him that it was dangerous to approach the gas vault with a light, and that he must not approach the generator with a light while it was being filled. Yet with these admonitions and with the knowledge that the gas was explosive and dangerous, he walked into the cellar, known by him to be close and containing the gas pipes and air pump, with a lighted lantern, and the moment he enters the explosion occurs. . . .

Stewart's parol agreement to fix or repair the gas pipes would not make the defendant responsible in this action. This agreement was made after the plaintiff had leased the premises and was occupying them. As the lease contained no contract to repair the premises, none can be implied, and any agreement for this purpose, entered into subsequent to the execution of the lease, would be nudum pactum, and would not avail the plaintiff here: Phillips v. Monges, 4 Whart. 226; Libbey v. Tolford, 48 Me. 316; Purcell v. English, 86 Ind. 34; Blake v. Dick, 15 Montana, 236. In the absence of an express warranty, fraud or misrepresentation, the lessor is not liable for injuries to the tenant for want of repairs: Brewster v. DeFremery, 33 Cal. 341; Doupe v. Genin, 45 N.Y. 119. Nor is the landlord liable for injuries to the tenant resulting from defective plumbing, where it is not shown that the plumber is not a competent workman: Meany v. Abbott, 6 Phila. 256. In the case at bar it does not appear that Stewart, at the time the lease was executed, tried to conceal any secret defects in the gas pipes, or knew the pipes were deficient in any respect and withheld that information from Mitchell. Hence, even if this were an action for deceit, there could be no recovery: Keates v. Earl of Cadogan, 10 Com. B. 591; Daly v. Wise, 132 N.Y. 306.

Under the pleadings and evidence in this case, we are compelled to discharge this rule and to refuse to take off the nonsuit entered on the trial.

Error assigned was in refusing to take off nonsuit.

Judgment affirmed.

Edward Campbell, with him R. P. Kennedy, for appellant.

R. E. Umbel, with him A. D. Boyd, for appellee.

Before STERRETT, C.J., GREEN, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE GREEN:

There is but one question in this case, and that is whether as to make it the duty of the court below to direct a compulsory nonsuit. At the conclusion of the plaintiff's testimony, upon motion of defendant's counsel, the court granted a compulsory nonsuit, which, afterwards in an exhaustive and able opinion, they refused to take off.

The plaintiff received his injury by an explosion of gasoline in the cellar of his own leased house. He entered the cellar with a lighted lantern in his hand and the explosion instantly took place. Was this the result of an act of negligence on his part which caused his injury? The explosion resulted immediately and directly from the presence of the lighted lamp. The plaintiff was the one, only person who...