Papallo v. Meriden Sav. Bank

• Decision Date: 05 February 1942
• Citation: 128 Conn. 563,24 A.2d 472
• Court: Connecticut Supreme Court
• Parties: PAPALLO v. MERIDEN SAV. BANK.

24 A.2d 472

128 Conn. 563

PAPALLO

v. MERIDEN SAV. BANK.

Supreme Court of Errors of Connecticut.

Feb. 5, 1942.

Appeal from City Court of Meriden; Poliner, Judge.

Action by Joseph Papallo against the Meriden Savings Bank to recover damages for personal injuries alleged to have been caused by the negligence of the defendant, brought to the City Court of Meriden and tried to the court, Poliner, J.; judgment for the plaintiff and appeal by the defendant.

Error and new trial ordered. A motion by the defendant concerning the certification of the evidence was denied.

See, also, 128 Conn. 289, 22 A.2d 637.

Before MALTBIE, C. J., and AVERY, BROWN, JENNINGS, and ELLS, JJ.

J. Stephen Knight, of New Haven, for appellant.

Francis R. Danaher, of Meriden, for appellee.

AVERY, Judge.

The facts found by the trial court in this case are these: For some time prior to June 28, 1938, the plaintiff had been a month-to-month tenant in the defendant's premises. When the tenancy began, the ceiling of the kitchen within the leased tenement was in poor condition. About a month prior to June 28, 1938, a piece of plaster fell from the ceiling of the kitchen. The plaintiff spoke to the defendant's officer in charge of real estate two or three times and told him that a piece of plaster had fallen from the kitchen ceiling and that he, the plaintiff, would move out if the ceiling was not repaired, and the defendant's officer said, "By and by we'll fix it up * * *. You stay and we fix it up." The conversation or conversations took place subsequent to the time when the first piece of plaster fell. The plaintiff remained in the premises after the conversations, and on June 28, 1938, another piece of plaster fell from the kitchen ceiling, striking the plaintiff and injuring him. Upon this state of facts, the trial court rendered judgment for the plaintiff from which the defendant has appealed. The defendant makes two claims of law. First, that no negligence is shown, in that it does not appear when the agreement to repair was made and that thereafter the defendant had a reasonable time to make the repair before the ceiling fell; and, second, that, as far as appears, the agreement was made after the tenant had entered upon a monthly term and within such monthly term and was unenforceable because of lack of consideration.

"'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 * * *. Hearn v. E. E. Hilliard Co., 99 Conn. 666, 122 A. 567; Valin v. Jewell, 88 Conn. 151, 156, 90 A. 36, L.R.A.1915B, 324." Newman v. Golden, 108 Conn. 676, 677, 144 A. 467.

In a case of this character brought by a tenant against a landlord and based upon an agreement to repair and a failure to do so, the basis of the action is not for the breach of contract to repair but for negligence growing out of the contract relationship. Dean v. Hershowitz...