Monroe v. Carlisle
| Decision Date | 18 May 1900 |
| Citation | 57 N.E. 332,176 Mass. 199 |
| Parties | MONROE v. CARLISLE et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
S. L. Whipple and M. J. Jordan, for plaintiff.
Geo. F Richardson, for defendant Hutchinson.
John Lowell and James A. Lowell, for defendants Carlisle & Pope.
This is an action of tort for personal injuries caused by the fall of a piece of stone from the capstone of a window in the third story of a brick building. The plaintiff was struck by the stone as he was walking on the sidewalk below the window, and was badly hurt. He brought this action against the landlord and tenants of the building. No question of pleading or procedure was raised at the trial, but the landlord Hutchinson, asked the judge to direct a verdict in his favor. This the judge refused, and instructed the jury that if the defect in the capstone was there before the letting the landlord was liable, unless it was such that human foresight could not reasonably be expected to look out for it. The landlord excepted.
The lease was made on January 10, 1894, for three years from April 1st, with a right of extension for two years, which right was exercised by the lessees. The accident was on October 21, 1897. The lessees covenanted in print to keep the premises in such repair as they were in at the beginning of the term, reasonable use and wear and damage by fire or other unavoidable casualties excepted, and further covenanted in writing to do all necessary repairs except to the gravel roof.
On these facts the landlord was not liable for a defect which first came into being after the tenants had taken charge of the premises, and the jury were instructed to that effect. The event shows that at the date of the lease there was no immediate danger, as the accident did not happen until more than three years later. Even if inspection would have disclosed that the capstone would crumble in the course of five years, as, of course, it would sooner or later, it would be going far to say that the covenant did not reach it,--a question not disposed of by cases like Lister v Lane [1893] 2 Q. B. 212; and it would be going still further to say that the landlord must be taken to have contemplated the event, or that the tenants, having full control, and, as the plaintiff asserts, the right and duty, as towards the public, to do what was necessary to make the place safe, were not the only responsible parties. The charge of the judge did not even require knowledge of the defect on the part of the landlord in order to make him liable. City of Lowell v. Spaulding, 4 Cush. 277; Leonard v. Storer, 115 Mass. 86, 88; Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 49, 15 N.E. 84; Oxford v. Leath, 165 Mass. 254, 43 N.E. 92; Szathmary v. Adams, 166 Mass. 145, 146, 44 N.E. 124. See, also, Quinn v. Cummings, 171 Mass. 255, 50 N.E. 624, 42 L. R. A. 101; Glynn v. Railroad (Mass.) 56 N.E. 698.
But in fact there was no evidence that inspection disclosed, or would have disclosed, the defect at the time of the lease. The fact that the stone was cracked at the time of the accident is no evidence of its condition five years before, and the fact that the jury took a view, without more, does not raise a presumption that evidence of the long-past condition of the stone was obtained by inspection. See Tully v. Railroad Co., 134 Mass. 499, 503; Rigg v. Railroad Co., 158 Mass. 309, 313, 33 N.E. 512. The suggestion made on behalf of the tenants that sandstone was an improper material for capstones is unsupported by testimony, and is contrary to well-known and very general practice. It follows that Hutchinson's exceptions would have to be sustained, were they before us alone.
The tenants, of course, were satisfied with the ruling which made the landlord liable, and so did not except. After the trial the plaintiff moved for judgment against them, which motion was allowed, and the tenants appealed. Assuming that the plaintiff was right in joining landlord and tenants in one action, as jointly liable, if liable at all, he had a right to sue the tenants alone, if he saw fit, even if the tort had been joint in the strictest sense. McAvoy v. Wright, 137 Mass. 207, 210; Dicey, Parties, 430, Rule 98. So, if the judge had directed a verdict for the landlord, as he should have done, the other defendants could not have excepted, and the plaintiff could have taken a verdict against them. Warren v. Railroad, 163 Mass. 484, 40 N.E. 895. See Rodney v. Strode, 3 Mod. 101; Sabin v. Long, 1 Wils. 30. And so if, after a verdict against all three, the plaintiff by leave of the court had discontinued against him, the verdict against the other two would stand. Mulchey v. Society, 125 Mass. 487, 490. The technical rule that a joint judgment is entire, and, if bad as against one, is bad against all, has no application to the proceedings before judgment.
The only trouble is that it appears by the argument before us that the plaintiff did not propose to discontinue against the other defendants by his motion. His intention was to take one judgment against the tenants and another against the landlord. That he could not do. Pickle v. Byers, 16 Ind. 383; Williams v. McFall, 2...
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