Soulia v. Noyes

• Decision Date: 06 November 1940
• Docket Number: No. 1077.,1077.
• Citation: 16 A.2d 173
• Parties: SOULIA v. NOYES et al.
• Court: Vermont Supreme Court

16 A.2d 173

SOULIA

v. NOYES et al.

No. 1077.

Supreme Court of Vermont. Rutland.

Nov. 6, 1940.

Exceptions from Rutland County Court; Orrin B. Hughes, Judge.

Action in tort by Bernice Rose Soulia against Earl C. Noyes and others for personal injuries. Defendants' joint demurrer to the first and second counts if plaintiff's amended complaint were overruled, and defendants bring exceptions.

Judgment reversed, demurrer sustained, and cause remanded.

Argued before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Bove, Billado & Dick, of Rutland, for plaintiff.

Christopher Webber, Ernest H. O'Brien, and James E. Bigelow, all of Rutland, for defendants.

MOULTON, Chief Justice.

This is an action in tort and the cause is here upon the defendant's exceptions to the overruling of their joint demurrers to the first and second counts of the plaintiff's amended complaint.

The first count alleges that the defendants, as trustees under the will of Hiram F. Noyes, deceased, are the owners of a certain two-family dwelling house in the city of Rutland; that on or about October 22, 1938, Norman Soulia, the plaintiff's husband, in the presence of the plaintiff, orally agreed with the defendants to rent the lower floor apartment of the dwelling house, provided that the defendants would agree to put, keep and maintain the apartment, and particularly the shed thereof, in safe repair; that in consideration of the agreement of the defendants to do so, Soulia and his family rented and moved into the apartment, including the shed; that the defendants disregarded their duty, in that they negligently permitted the floor of the shed to become so worn, rotted and otherwise defective that it was dangerous to the life and limbs of persons walking thereon, which the defendants and each of them well knew, and of which condition they had had notice for a long time prior to the date of the lease; that on or about October 21, 1939, while the plaintiff was proceeding over the floor of the shed, without negligence or assumed risk on her part, the floor collapsed and caused the plaintiff to fall, with resulting injury. The second count is identical with the first, except that it is charged that the failure to put, keep and maintain in repair was intentional, wilful and malicious with wanton and reckless disregard of the plaintiff's safety.

The demurrer to each count is based upon two grounds (1) that the complaint does not show any consideration for the alleged agreement to repair and (2) that even if it were a valid agreement to do so, this would not give rise to a cause of action in tort for injuries sustained by the plaintiff because of a failure to make the repairs.

The first ground is clearly unavailing, because the allegations of the complaint show that the agreement concerning the repairs was a part of the lease. It was a promise which the lessee accepted by entering into possession of the premises. Withington v. Rome, 258 Mass. 188, 154 N.E. 764, 765. Indeed, this ground of demurrer does not appear to be relied upon by the defendants for it is not briefed.

In considering the second ground of demurrer we are not concerned with a situation where repairs undertaken by a landlord either gratuitously or in the performance of a duty imposed by contract have been negligently made; or where a danger exists in a public or common passage or stairway; or where the defect is of such a nature as to constitute a nuisance; or where the leased premises are a place of public resort; or where there has been a warranty or a misrepresentation of fact by the landlord as to their condition. The fault charged against the defendants is a failure to repair according to their agreement with the lessee, and the plaintiff, although she may have been present when the lease was made, does not appear to have been a party to it.

Whether the failure of a lessor to make repairs in fulfillment of a contractual obligation to do so may render him liable in an action in tort on behalf of the lessee or other person lawfully on the premises for personal injuries suffered in consequence of such failure is a question which has not previously been presented to this court, but has given rise to much diversity of opinion among other jurisdictions. "Generally, however, in this country as in England, a covenant to repair does not impose upon the lessor a liability in tort at the suit of the lessee or of others lawfully on the land in the right of the lessee." Cullings v. Goetz, 256 N.Y. 287, 176 N.E. 397. To the same effect are Cormier v. Weiner, 277 Mass. 518, 178 N.E. 723, 724; Chelefou v. Springfield Institution for Savings, 297 Mass. 236, 8 N.E.2d 769, 771; Hunkins v. Amoskeag Mfg. Co., 86 N.H. 356, 169 A. 3, 4; Jacobson v. Leaventhal, 128 Me. 424, 148 A. 281, 282, 68 A.L.R. 1192; Harris v. Lewistown Trust Co., 326 Pa. 145, 191 A. 34, 35, 110 A.L.R. 749; Davis v. Smith, 26 R.I. 129, 58 A. 630, 632, 66 L.R.A. 478, 106 Am.St.Rep. 691, 3 Ann.Cas. 832; Dice v. Barbour, Adm'r, 161 Ky. 646, 171 S.W. 195, L.R.A.1916F, 1155, 1158; Berkowitz v. Winston, 128 Ohio St. 611, 193 N.E. 343, 345; Cavalier v. Pope, [1906] A.C. 428, 433. That these decisions are representative of the weight of authority appears from many other cases collected in annotations in L.R.A.1916D, 1227; L.R.A.1916 F, 1106; 11...