Pignatario v. Meyers

• Decision Date: 08 January 1924
• Court: Connecticut Supreme Court
• Parties: PIGNATARIO v. MEYERS ET UX.

123 A. 263

100 Conn. 234

PIGNATARIO v. MEYERS ET UX.

Supreme Court of Errors of Connecticut.

January 8, 1924

Appeal from Court of Common Pleas, New Haven County; John R. Booth Judge.

Action by Tony Pignatario against Sam Meyers and wife. Judgment of nonsuit, and, from order denying motion to set aside the judgment, plaintiff appeals. Error, and new trial ordered.

The complaint in this action alleges that at the time of the injury alleged therein plaintiff was tenant of a certain store in the city of New Haven by virtue of a lease with defendants' grantor, in which he conducted the business of selling groceries and meat; that there was a tenement in the building of defendants above said store at that time and before, which was vacant and in the possession and control of defendants, which tenement contained water pipes used to carry water from the public city supply thereto; that said tenement at the times mentioned was without sufficient heat to prevent the water pipes from freezing, and on February 19, 1922, the water in these pipes froze and the pipes burst, allowing water to escape therefrom on the floor of the tenement, which water flowed through the floor walls and ceilings of the building and down upon the stock of goods in the plaintiff's store and damaged the same.

It was further alleged that the injury to plaintiff's goods was due to the negligence of the defendants in failing to provide sufficient heat in this vacant and unoccupied tenement to prevent the water pipes from freezing, to their neglect and failure to turn off the water in the pipes in the tenement to prevent freezing, and to their failure to take reasonable precautions to prevent the water in the pipes from freezing and bursting the same.

By reason of the facts alleged, plaintiff lost a large amount of his stock, and incurred an expense of $50 in removing handling, and cleaning damaged goods.

The transcript of the evidence shows that the following material facts might have been found: That the plaintiff had occupied the store above mentioned in the business of selling meats, groceries vegetables, and fruit since July 7, 1920, and was so engaged on February 19, 1922. The store was part of a frame building in which latter there were four tenements, one of which was above the store occupied by plaintiff, and one upon the same floor, both on the date last named unoccupied, and the one above the plaintiff had been unoccupied about three weeks, and the former tenants thereof had moved on account of lack of heat. There were shelves on both sides of the store, and those upon one side contained groceries and boxed packages of goods, constituting stock as yet unopened and undisplayed. The date last mentioned fell on Sunday. Plaintiff had closed his store shortly before midnight the day before, and on this Sunday morning entered his store, and found that water had flowed down through the metal ceiling through several apertures and upon the goods just described and thence had run down upon the floor flooding the same. Plaintiff seized a cleaver and cut a hole in the floor to let the water flow out. Descending to the cellar, plaintiff attempted to shut the water off, but did not know how to do it, and sent for a plumber, who shut the water off, but water continued to flow during the entire day, and was dripping the next day. Directly after the store was opened Sunday morning, the defendant Katie Meyers came in and made a purchase, and plaintiff called her attention to the leakage. The shut-off cock was in a part of the cellar which contained toilet fixtures, and was open in common to all of the tenants of the building. The plaintiff, with the assistance of several persons, then proceeded to remove and clean his stock of goods, which were considerably damaged. The amount of damage is not material to the questions before us.

For some days preceding the date of injury, the weather had been cold, with a temperature below the freezing point. At about the date of the occurrence the temperature had risen and was above the freezing point.

At the date of the injury the defendant Katie Meyers was the sole owner of the premises.

At the conclusion of plaintiff's case a motion for a nonsuit was granted, and a motion to set the same aside was denied.

Joseph I. Shrebnik and Arthur B. O'Keefe, both of New Haven, for appellant.

Jacob Belford and Edward G. Levy, both of New Haven, for appellees.

KEELER, J. (after stating the facts as above).

There is no obligation at common law on the part of a landlord to make repairs upon leased property or to keep the same in safe condition apart from a contract so to do. Gallagher v Button, 73 Conn. 172, 175, 46 A. 819; Valin v. Jewell, 88 Conn. 151, 156, 90 A. 36, L.R.A. 1915B, 324. The lease (Exhibit B) in the instant case imposes no such liability. In this case there is no contractual liability, and the action is one purely of tort and must show some primary right of plaintiff's invaded by defendants. It appears to be established by the evidence that the tenement above the store of plaintiff had been unoccupied by any tenant for about three weeks previous to the occurrence from which damages are claimed, and it is a valid and persuasive inference, in the absence of any suggestion to the contrary, that the same were in the exclusive possession and control of defendants. The...