Shute v. Bills

• Decision Date: 14 May 1906
• Parties: SHUTE v. BILLS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

191 Mass. 433

78 N.E. 96

SHUTE v. BILLS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 14, 1906

COUNSEL

Frank H. Noyes, for plaintiff.

Frank N. Nay and Leon M. Abbott, for defendants.

OPINION

SHELDON J.

The plaintiff with her husband and mother occupied a one-family dwelling house owned by the defendants and situated in Roxbury, the house being hired by her mother under a verbal arrangement with the defendants' agent. Early in the morning of Sunday, December 8, 1901, while she was leaving the house by the front door, she slipped upon the top step fell and was injured. It had snowed shortly before, and the jury might have found that her fall was due to water having dripped during the day from a leak in a gutter overhead and frozen after sunset, leaving a thin skimming of ice upon the step. She claims to hold the defendants for her injuries, on the ground that this leak in the gutter constituted a concealed defect existing at the time when the defendants let the house, which they then knew or should have known, but of which they gave no information either to the plaintiff or to her mother, the tenant; and also on the ground that on its discovery after occupancy had begun the defendants' agent was notified and requested to repair it, but neglected so to do, although bound to make such repairs by express press contract and also by contract implied from a general custom by which they were bound to keep the roof and gutter in repair; and also upon the ground that the roof and gutter did not pass by the contract of letting but remained in the control of the defendants; and that having undertaken to repair, the defendants repaired the roof and gutter in a negligent manner.

1. Assuming without deciding that there was a leak in the gutter which might have been found to be a hidden defect, there was absolutely no evidence that its existence was known or ought to have been known before the letting to the defendants. But to sustain the action upon this ground it must appear that the defendant either knew or ought to have known of the existing danger. Martin v. Richards, 155 Mass. 381, 29 N.E. 591; Cutter v. Hamlen, 147 Mass. 471, 18 N.E. 397, 1 L. R. A. 429; Cowen v. Sunderland, 145 Mass. 363, 14 N.E. 117, 1 Am. St. Rep. 469; Bowe v. Hunking, 135 Mass. 381, 46 Am. Rep. 471; Minor v. Sharon, 112 Mass. 477, 17 Am. Rep. 122. Even if the landlord should discover such a defect after the beginning of the tenancy, he is under no obligation to communicate it to the tenant. Bertie v. Flagg, 161 Mass. 504, 37 N.E. 572. The action cannot be maintained upon this ground.

2. There was evidence from Mrs. Tabor that after she had moved into the house, 'when the roof leaked and run down through into the chambers, from the gutter on the front step,' she spoke to the defendants' agent about that and he sent a man who put some new shingles and she thought pieces of tin on the roof and cleaned out some of the gutter. The defendants' agent also testified that he had had repairs made on the roof and the gutter, that the shingles of the roof had been repaired and the gutter cleaned out and put in order. The plaintiff's husband also testified that he saw a cleat which had been nailed to the thick outer edge of the gutter, but there was nothing to show whether this was or was not there before the beginning of the tenancy. The plaintiff's mother also testified that the defendants' agent promised when she hired the house to do 'any repairing needed, anything within reason.' The plaintiff also put in evidence against the objection and exception of the defendants that there was a known custom or usage in Boston by which when houses are entirely let without any written lease to a single tenant at will, the owner does the outside repairs, such as the roof and gutters and conductors. We cannot say that this evidence was incompetent, or that such a usage, if the jury found its existence to be proved, would be a bad one. See Pickering v. Weld, 159 Mass. 522, 34 N.E. 1081; Hutchins v. Webster, 165 Mass. 439, 43 N.E. 186; A. J. Tower Co. v. Southern Pacific Co., 184 Mass. 472, 69 N.E. 348. Taking all the evidence together, we think that the jury might have found that the defendants had assumed the obligation to make repairs, at any rate such outside repairs as might be needed in the roof and gutters; that notice of the alleged leak in the gutter had been given to their agent, and that they, acting through their agent, undertook to repair this leak, but that in spite of the repairs which were made the leak continued as before. It is true that the plaintiff herself testified that no repairs were made upon the gutter; but the jury might have believed the testimony of the defendants' agent upon this question. In that event, the defendants' liability in this action would depend upon whether or not the repairs upon the gutter were made negligently. 'The general rule in...