Sawyer v. McGillicuddy

• Decision Date: 18 February 1889
• Citation: 81 Me. 318,17 A. 124
• Parties: SAWYER v. MCGILLICUDDY.
• Court: Maine Supreme Court

17 A. 124

81 Me. 318

SAWYER

v. MCGILLICUDDY.

Supreme Judicial Court of Maine.

Feb. 18, 1889.

Exceptions from supreme judicial court, Androscoggin county.

This was an action by C. M. Sawyer against John McGillicuddy for negligence in not maintaining in good repair a stairway connected with certain rooms which the defendant rented to the plaintiff in his building. The ingress to the rooms was by a stairway running through the building. The same stairs were erected and designed for all the rooms in the building, some of which were leased by the plaintiff, others to other tenants. On the point of defendant's liability to maintain the stairway and landing, the presiding justice gave the following ruling: "The parties in this litigation are landlord and tenant. The plaintiff is a tenant of the defendant, her landlord; and she alleges negligence in his maintaining a passage-way or stairway annexed to her rooms, which were her tenements. In the first place, what are the legal relations of the parties? The landlord who lets a tenement, as a rule, does not imply a covenant that the premises are in repair,—that they are fit for occupation. He sells the use of the premises for the time being. He ceases for the time being to be the owner of the premises, and the tenant becomes the owner,—has the possession and control. A landlord is never obliged to repair the leased premises unless he has expressly agreed to do so; unless, as part of the letting, there is an agreement that he will do so. Some authorities (that is, the courts in some states) make an exception to this rule in the case of a passage-way common to different apartments, let to different persons by the same landlord; but even that exception is strongly combatted by some courts. I think the tendency of decision in this state is favorable to the view taken by the plaintiff; and, while it is the exception to the rule, at any rate, I so rule for the purposes of this case. I give to you this rule to govern this case, namely: If the defendant let rooms to plaintiff in his building, having, at the same time, other rooms let to other persons, or to any other person, and there was in the building or outside of it, annexed to it, a stairway designed for and being common to all the rented rooms or apartments, in such case there is an implied covenant, between the landlord and tenant, that he will suitably care for and maintain the passage-way or stairway for the tenants, unless there be an express agreement that he is not to maintain the stairway at his own expense." Plaintiff was injured by the falling of a part of the landing at the foot of the stairway. Verdict for the plaintiff. To the instruction touching the landlord's liability to maintain and keep the stairway in repair the defendant excepted.

F. L. Noble, for plaintiff. D. J. McGillicuddy and G. E. McCann, for defendant.

DANFORTH, J. The ruling complained of in this case raises but a single question, namely, the liability of the defendant, upon the facts stated in the exceptions, to suitably care for and maintain the passage-way or stairway for the tenants, unless there be an express agreement that he is not to maintain the stairway at his own expense." By the ruling, this liability is imposed upon the defendant by virtue of an implied covenant. It is to be noticed that the plaintiff's right to recover is not made to rest upon this proposition alone. This is only one of the elements of her case, among many others, upon which we must assume that correct instructions were given. It appears that the defendant was the owner of the building including the stairway in question; that in the upper part of the building there were several different tenements, leased to as many different tenants, of whom the plaintiff was one; and that the stairway was built for the accommodation of the different tenants, and used by them in common as a passage-way to their several rooms; and, as conceded in the defendant's argument, the plaintiff received the injury which is the subject of this suit "by falling through the landing at the foot of the stairway." In such cases the rights and liabilities of the parties are the result of a contract between them. In the absence of an express contract, the law will imply such as shall be deemed reasonable, under all the circumstances. In this case there was an express contract as to the tenancy, but that left the obligation to repair to such as might be implied by law. In the first instance, the burden of repairs reasonably necessary for the protection of all persons rightfully upon the premises is upon the owner; and, if he would be relieved, the burden is upon him to show that the obligation has been transferred to another. In the ordinary case of landlord and tenant that transfer is made. The lease is an instrument of conveyance. The lessee takes the possession of the property, and has the full control of it. The landlord has no right of entry even, except so far as it may have been reserved. The tenant for the time being is in the place of the owner, taking the property as he finds it. These circumstances are so connected with the repairs that the law deems it reasonable and proper that, in this respect as well as in others, the tenant should take the place of the owner, and authorizes the inference that such wa3 the intention of the parties, in the absence of controlling facts. This would also be true of all appurtenances connected with or ways to the premises when such appurtenances and ways were included in the lease, with the same right of possession in the tenant as in the premises. This rule is now beyond controversy.

But when the reason ceases the law ceases. Though the relation of landlord and tenant exists between these parties as to the tenement occupied by the plaintiff, it does not as to the stairway in question. Over that she has only a right of way in common with others; no right of exclusive or any possession, except as she is passing over it; no right of entry, even for any other purpose....