Newman v. Golden

• Decision Date: 30 January 1929
• Citation: 108 Conn. 676,144 A. 467
• Court: Connecticut Supreme Court
• Parties: NEWMAN v. GOLDEN ET AL.

144 A. 467

108 Conn. 676

NEWMAN v. GOLDEN ET AL.

Supreme Court of Errors of Connecticut.

January 30, 1929

Appeal from Superior Court, New Haven County; Newell Jennings Judge.

Personal injury action by Ruth Newman against Nathan Golden and others. After defendants' demurrers to the complaint and the amended complaint were sustained, judgment was rendered for defendants, and plaintiff appeals. Error, and cause remanded.

Robert J. Woodruff and John G. Confrey, both of New Haven, for appellant.

Benjamin Slade, Louis Weinstein, and Arthur B O'Keefe, all of New Haven, for appellees.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

MALTBIE, J.

The original complaint in this action alleged that the plaintiff was a minor of the age of 11 years, residing with her parents in a tenement house owned by the defendant and rented to them; that a toilet located in the tenement occupied by them was out of repair, in that the swinging seat was broken loose from the stationary part; that the defendant's attention was called to the condition of the toilet, and that he promised to repair it, but neglected to do so; that on or about May 15, 1927, the plaintiff, having occasion to go to the toilet, found the seat in its ordinary position; that after using it, she stepped upon the seat to reach a pull chain, which had been provided by the defendant for the purpose of tripping it, but which came no nearer than 5 1/2 feet from the floor; that, while she was using it, the seat fell from the toilet, causing her to fall and suffer severe injury; and that the cause of her fall was the negligence of the defendant in neglecting to repair the toilet in accordance with his agreement, in allowing it to remain in its broken condition, and in failing to provide a chain for it of proper and reasonable length. To this complaint the defendant demurred, in brief, because it appeared from its allegations that the toilet was located in the tenement occupied by the plaintiff and her parents as lessees and because the complaint stated no legal duty upon the part of the defendant to repair the toilet. This demurrer the trial court sustained, and its action in so doing is one of the grounds of appeal.

" At common law the landlord is under no obligation to make repairs upon leased premises; any obligation in that regard must arise from contract or statutory provision" (Lesser v. Kline, 101 Conn. 740, 744, 127 A. 279, 281); nor is he liable for an open, visible, and dangerous condition in the leased premises in existence when the tenant took possession, either to him or to his minor child living with him (Hearn v. Hilliard Co., 99 Conn. 666, 122 A. 567; Valin v. Jewell, 88 Conn. 151, 156, 90 A. 36, L.R.A. 1915B, 324). Apart from such obligation as might arise out of the promise alleged, there was no duty resting upon the defendant either to repair the toilet or to remedy any defect arising out of the shortness of the pull chain. Out of a valid and enforceable agreement on his part to make repairs might arise an obligation the breach of which would give rise to an action for negligence. Stevens v. Yale, 101 Conn. 683, 127 A. 283. Under the original complaint in this action, however, so far as appears, the agreement to repair the toilet was made after the tenants had entered under their lease, and it was therefore unenforceable because without consideration. Gill v. Middleton, 105 Mass. 477, 478, 7 Am.Rep. 548; Libbey v. Tolford, 48 Me. 316, 318, 77 Am.Dec. 229...