Stevens v. Yale

• Decision Date: 13 January 1925
• Court: Connecticut Supreme Court
• Parties: STEVENS v. YALE.

127 A. 283

101 Conn. 683

STEVENS v. YALE.

Supreme Court of Errors of Connecticut.

January 13, 1925

Appeal from Superior Court, New Haven County; Frank D. Haines Judge.

Action by Clara Stevens, a tenant, against her landlord, Caecilia I Yale, to recover damages for the alleged negligence of defendant in maintaining that part of the building for the common benefit of all the tenants and in failing to perform her agreement to repair after notice, brought to the superior court in New Haven county and tried to the jury before Haines, J. Verdict for plaintiff, and from denial of motion to set aside, defendant appeals for errors in the charge made and in the refusal to charge. No error.

Cornelius J. Danaher, of Meriden, for appellant.

Lewis J. Somers, of Meriden, for appellee.

Argued before WHEELER, C.J., and BEACH, CURTIS, KEELER, and BANKS JJ.

WHEELER, C.J.

The plaintiff construes the complaint to allege two independent causes of action which she offered evidence to prove and claimed to have proved: (1) That defendant, having retained the exclusive possession and control of the common water drainage system of her three family tenement house, was charged with the duty of keeping the drainage system in repair; that one of these tenements plaintiff occupied as a tenant under an oral lease from month to month, and in consequence of the defendant landlord's failure to keep the drainage system in reasonable repair she suffered the personal injuries for which she seeks damages. (2) That the plaintiff notified defendant landlord of the defective condition of this drainage system of which defendant retained the exclusive control, and she promised to repair this defect if plaintiff would remain as a tenant, but negligently failed to do so, and in consequence of such failure to repair plaintiff suffered the injuries for which she seeks damages.

The appeal from the denial of the motion to set aside the verdict is not well taken. The jury might reasonably have found from the evidence produced by the plaintiff that the plaintiff was a tenant of defendant in July, 1922, occupying one of the tenements of defendant's three family tenement house, and that defendant retained the exclusive possession and control of the water drainage system, and that in this month she complained to defendant that the water leader--a part of the common water drainage system--directly above an uncovered platform leading from this tenement by steps to the back yard was out of repair; that in the following September, October, and November plaintiff and her husband informed defendant that this leader was out of repair, and that some one was liable to get hurt in the winter time, and threatened to move if defendant did not make the repair; that in fact this leader remained out of repair from July, 1922, to and including January 20, 1923, and defendant thereupon in these months promised to make the repairs, but did nothing, except that in September new rain leaders and conductors were brought to this building and stored in its cellar; that on the night of January 19, 1923, snow fell, and plaintiff caused the same to be removed from this platform on the next morning, and on this morning plaintiff passed over the platform, which was then free of snow, to the back yard, and after her return to her tenement did not go out of doors until about 5:30 p. m., at which time plaintiff started to go to the back yard for coal with a coal hod in her hand, and stepped on the platform and slipped on a coating of ice which had formed thereon and which she did not see because it was dark, and fell, and suffered the injuries for which she sues; that it had thawed during the day, and that the water from the melting snow was carried from the main roof of this house to the ell roof, and this water and that from the snow on the ell roof was carried thence by this broken leader to the platform and steps on which plaintiff passed, and froze thereon.

Since the verdict is a general verdict, we must assume that the jury may have found in accordance with the facts supporting each of these causes of action, and that the jury might reasonably, under proper instructions, have reached their verdict on either ground. Aaronson v. New Haven, 94 Conn. 696, 697, 110 A. 872, 12 A.L.R. 328.

The defendant seems to claim in his brief that the case before the court on the first cause of action was based upon a breach of the landlord of his duty to the tenant, and that the court both improperly charged the duty as to this point, and refused to charge, as requested, the settled law. Upon this subject the court did charge as to the general duty of a landlord to repair as far as it was necessary to go, and as far as the charge went in accordance with our law. It said:

" It is true as matter of law that, in the absence of any contract or agreement to repair, and where there is no deceit or warranty on the part of the landlord, a tenant who hires premises takes them as they are, at least in so far as the obvious conditions are concerned; it being held that for the term of the tenancy he owns the leasehold estate of the premises which he has taken."

This was said preliminarily. Defendant's fourth request to charge, which states at great length the duty of the landlord to the tenant, is not relevant to either of the causes of action upon which the complaint stands. The trial court follows the preliminary statement we have quoted with a correct statement of the law relative to the first named cause of action involved. Its statement of the law accorded with the rule announced in Koskoff v. Goldman, 86 Conn. 415, 424, 85 A. 588, 592:

" It is a rule of sound reason, and one generally accepted, that the duty of maintenance and repair rests upon a landlord in respect to common passageways and approaches in or to a building occupied by several tenants, which passageways or approaches are retained under his control for the use of the several tenants as a means of access to the portions of the premises leased to them, and that the landlord is liable for injuries received by a tenant by reason of the landlord's negligence in the performance of this duty." Gallagher v. Button, 73 Conn. 172, 177, 46 A. 819; Gaucso v. Levy, 89 Conn. 169, 93 A. 136; Brundrett v. Rosoff, 92 Conn. 698, 104 A. 67; Cook v. Simon, 98 Conn. 98, 118 A. 634; Pignatario v. Meyers, 100 Conn. 234, 123 A. 263.

And in Watkins v. Goodall, 138 Mass. 533, the same rule was applied upon a set of facts nearly related to those which the jury may have found. The defendant does not controvert this rule, but contends that there was no evidence that any ice had formed on the rear platform from water discharged from a defective leader. On the contrary, we are of the opinion that the jury might reasonably have made this deduction.

The second cause of action arising out of the failure of the defendant after knowledge of the defective condition of the leader to fulfill her agreement to repair it, provided the plaintiff would continue in her tenancy, counsel for the defendant attack as unsound in law, for the reason that the landlord is under no obligation to make repairs unless such stipulation is made a part of the original contract, and that any subsequent promise to make repairs founded merely on the relation of the parties, and not one of the conditions of the lease, is without consideration, and for that reason creates no liability.

The request, if made, by defendant to plaintiff to remain as her tenant and her acquiescence in the request was upon the consideration of defendant's promise to repair the leader. Whether this promise was made in the lease, or after its making, each was made upon a valuable consideration. Plaintiff's acquiescence in defendant's request that she remain as her tenant was made upon such a consideration. Bennett v. Sullivan, 100 Me. 118, 60 A. 886; 1 Tiffany, Landlord and Tenant, p. 600, § 87.

The majority of the authorities deny the right of a recovery to the tenant for an injury to his person or property suffered in consequence of the failure of the landlord to keep his covenant to repair. " Such injuries," Tiffany, at page 592, says, " resulting not directly from a breach of the contract, but from physical conditions existing apart from the contract, which the contract merely undertook to eliminate, cannot well be regarded as a proximate result of the breach of the contract, within the contemplation of the parties at the time of the making thereof. To allow a recovery for such injuries is to allow a recovery as for tort on account of a breach of contract." This view leaves the tenant remediless, unless he make the repairs himself, or, if he can legally do so, give up his tenancy.

The court in Dailey v. Vogl, 187 Mo.App. 261, 264, 173 S.W. 707, 708, thus states the rule:

" He [the landlord] is not liable in tort for negligence. The sum of his liability is governed by his contract. For he only becomes liable by reason of his contract, therefore the contract determines its extent. Only being liable by reason of his contract, there is no duty resting upon him, except

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