State of Maryland v. Manor Real Estate & Trust Co., 5899.

• Court: U.S. Court of Appeals — Fourth Circuit
• Writing for the Court: PARKER, , and SOPER and DOBIE, Circuit
• Citation: State of Maryland v. Manor Real Estate & Trust Co., 176 F.2d 414 (4th Cir. 1949)
• Decision Date: 02 August 1949
• Docket Number: No. 5899.,5899.
• Parties: STATE OF MARYLAND, for Use of PUMPHREY v. MANOR REAL ESTATE & TRUST CO. et al.

176 F.2d 414 (1949)

STATE OF MARYLAND, for Use of PUMPHREY v. MANOR REAL ESTATE & TRUST CO. et al.

No. 5899.

United States Court of Appeals Fourth Circuit.

Argued June 27, 1949.

Decided August 2, 1949.

I. Duke Avnet and Edgar Paul Boyko, Baltimore, Md., for appellant.

J. Gilbert Prendergast and Walter V. Harrison, Baltimore, Md. (Bernard J. Flynn, U. S. Atty., James B. Murphy, Asst. U. S. Atty., and Roszel C. Thomsen, Baltimore, Md., on the brief), for appellees.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

This is a suit under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq., and the Maryland Wrongful Death statute, Code Md.1939, art. 67, § 1 et seq., brought in behalf of the widow of Evered W. Anderson to recover damages for his death. The defendants are Manor Real Estate and Trust Company, a holding company affiliated with the Pennsylvania Railroad Company, Calvert Village, Inc., and the United States of America. The complaint charged that Anderson died of endemic typhus, a disease transmitted by means of the bite of a flea from an infected rat, which in this case was caused by the negligence of the defendants in failing to take adequate measures to exterminate the rats on the premises of an aggregation of apartment houses in which Anderson was a tenant. The District Judge dismissed the complaint, holding that although negligence was proved, the evidence did not sufficiently establish that Anderson's death was caused thereby. He also held that there could be no recovery because endemic typhus is a comparatively rare and unknown disease, and Anderson's death from the disease was not a foreseeable consequence of the defendant's negligence.

The house in which Anderson lived was one of twenty-two three-story row dwellings, one hundred and twenty-five years old, located in the 600 and 700 blocks of North Calvert Street in Baltimore City. The Railroad Company purchased them more than thirty years ago as a site for a freight terminal, but the project was abandoned and most of the houses, including No. 619 in which Anderson lived, had been vacant for many years. In June, 1943, they were leased to the Federal Public Housing Authority for a nominal rental to aid the government in the pressing need for housing for defense workers in the Baltimore area during the war. The government divided each of the houses into six apartments, so that the 600 block contained a total of ninety-six dwelling units, and actually housed as many as three hundred and twenty-eight persons. All of the occupants had access to the basements or cellars where they did their laundry and deposited their garbage in containers furnished by the landlord. The houses were heated by furnaces in the basement, one for each group of four houses. In several of the buildings openings were cut between adjoining cellars.

The Public Housing Authority engaged a Baltimore real estate firm, Pierre C. Dugan & Nephew, to manage the premises, and they remained in charge from 1943 to 1947 when the Authority subleased the apartments to Ellis B. Mazer who in turn assigned them to Calvert Village, Inc. During the period of government control the wooden floors of the cellars were honey-combed with rat burrows and the garbage from the apartments frequently overflowed the delapidated uncovered containers furnished by the landlord to the tenants, and spilled upon the floor. Only one janitor and a helper were employed to service the more than twenty houses in the 600 and 700 blocks; the helper worked full time but the janitor was present only three or four hours a day in the winter, spending the rest of his time on other work for the Dugan firm. As a result of this deplorable situation, many large and bold rats, often four or five at a time, were observed in the cellars each time the tenants descended to dispose of their garbage and trash. Mrs. Anderson and the tenants generally complained to the agent, but to no avail.

This was the condition of the premises when Anderson rented the second floor front apartment in No. 619 in February, 1946. He was taken ill with typhus on January 13, and died on January 23, 1947. The incubation period for endemic typhus is from four to twenty-two days. There is no evidence and no contention that Anderson was exposed to the disease at any other place than the cellar of the house on which his apartment was located, where he disposed of his garbage daily, and occasionally stayed long enough to make some efforts to clean up the refuse on the floor.

The negligence of the managers of the project consisted of providing inadequate janitor service and taking inadequate steps to eliminate the rats in the cellars. The danger of rat infestation, as a result of the rotted floors and holes in the masonry, was first called to the attention of the government by the Baltimore City Health authorities on March 15, 1944. The Department did not take affirmative action because the property was in control of the United States Government. However, in October, 1946, two cases of typhus in the 600 block of Calvert Street were reported to the Department and the director of the sanitary section, thoroughly alarmed, communicated this fact to the United States Public Health Office; and on November 1, 1946, a representative of the United States Public Health Service, a representative of the city Health Department, and the field supervisor of the Housing Authority had a conference concerning the rat infestation in the Calvert Street properties, the danger of typhus, and the effect of rats in carrying the disease. On November 4, 1946, the city Health Department started to trap rats in the area in order to determine the incidence of typhus infection, and 18 per cent. of the rats in the two blocks were found to be infected. It was also found that the disease was localized in that area.

As a result of this conference, the United States Public Health Service recommended that the rat holes in the cellars be filled, the rat burrows dusted with D. D. T. and rat poison, and the doors and windows be made secure so that the rats could not enter from the outside. Dugan delegated the job of carrying out these recommendations to two men who had been working three days a week on odd jobs in the Calvert Street property and who, in the period from November, 1946, to January, 1947, devoted their spare time during three days a week in carrying out the recommendations. They had never done ratproofing work before, and they did not fill the rat holes satisfactorily. A city Health Department inspector was forced to mark with chalk the holes missed by the workmen who went over the ground a second time, but even then did not fill all the holes that were marked. The United States Public Health officer did not recommend that the floors of the cellars be concreted, or that the masonry walls in the cellars be repaired, and it followed that the rats still had harborage in the floors and walls, and were able to dig new holes as fast as the old holes were filled.

A total of six cases of typhus was reported to the city Health Department from the apartment house area prior to January 1, 1947. On that date the government subleased the premises to Mazer who in turn assigned his interest to Calvert Village, Inc. The withdrawal of the property from government control freed the city Health Department to take charge of the situation and on January 20, after a conference with Mazer, it issued a detailed directive outlining the necessary steps for effective ratproofing. The work was done in about two months in accordance with the directive by Calvert Village, Inc. at a cost of about $8,000 and no cases of typhus have been reported from the area since that time.

The suit was virtually abandoned by the plaintiff as to the Manor Real Estate and Trust Company, and was accordingly dismissed by the District Court. With a few exceptions, the houses were not occupied for many years prior to the government occupation and the evidence showed that rats congregate only where there is available food. Manor was relieved from all liability for the condition of the property in its contract of lease with the Housing Authority.

The case was likewise properly dismissed as to Calvert Village, Inc., which was chartered on January 3, 1947, and took over Mazer's sublease on January 10, 1947. No person connected...