Stumpf v. Leland

• Decision Date: 06 July 1922
• Citation: 242 Mass. 168,136 N.E. 399
• Parties: STUMPF v. LELAND.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

242 Mass. 168

136 N.E. 399

STUMPF

v.LELAND.

Supreme Judicial Court of Massachusetts, Suffolk.

July 6, 1922.

Exceptions from Superior Court, Suffolk County; John A. Aiken, Judge.

Action by Alice E. Beatty against George A. Leland for personal injuries, prosecuted by Mary M. Stumpf, executrix, after plaintiff's death. Verdict for $9,750, and defendant brings exceptions. Exceptions sustained, and judgment entered for defendant.

The injuries were sustained through the breaking of a porch railing on premises leased by the original plaintiff from defendant. Defendant excepted to the refusal of instructions, to so much of the charge as was inconsistent with a requested instruction that there was no evidence that the relation between the parties was that of invitor and invitee, and to a charge that the landlord did not warrant or guarantee the safety of the premises, but that, if there was a condition of the railing that was in fact unsafe and he was aware of it, or ought to have been aware of it, it was his duty to tell plaintiff.

Francis J. Carney, of Boston, for plaintiff.

Fletcher Ranney, of Boston, for defendant.

RUGG, C. J.

This is an action of tort to recover compensation for personal injuries received by Alice E. Beatty by reason of a defect in the railing of a back porch on premises owned by the defendant and occupied by the deceased and her sister. The case was submitted to the jury under instructions that the relation of landlord and tenant existed between the defendant and Mrs. Beatty. A written lease between the latter and her sister as lessees and the defendant as lessor had been executed under date of March 10, 1919, for a term of years beginning with May 1, 1919, but the lessees entered into occupancy on March 27, 1919, knowing that certain repairs called for in the lease, including a ‘new floor and railing in back porch,’ had not been made and were thereafter to be made. Before they were made the plaintiff was injured by reason of the giving way of the railing, which might have been found to have been defective.

The deceased and her sister as prospective tenants availed themselves of opportunity for inspection of the premises before the tenancy began. There was no contract between the parties concerning the condition of the premises other than that implied by law. There was no fraud or misrepresentation about them. There was no evidence that the defendant knew anything about the condition of the premises. His liability rests upon the knowledge of his agent in charge and he is bound by the knowledge of that agent. There was no evidence that the agent had any knowledge of the defective condition of the railing except that gained by looking at it from inside the house, when--

‘it did not appear to be all right; that it looked seedy and worn; that he did not examine the balusters; that the whole thing appeared to be weather beaten, the rail and the balustrade included; that he made no close inspection of the top railing.’

This fails to show on the part of the agent information concerning a hidden defect. All of this was equally open to the inspection and observation of the tenants.

At the close of the evidence the defendant moved that a verdict be directed in his favor and excepted to its denial. The defendant also excepted to an instruction respecting the duty of the defendant as landlord, to the effect that if there was a condition in the railing which--

‘was in fact unsafe and he was aware of it or ought to have been aware of it using the care and prudence that a landlord should, and Mrs. Beatty was unaware of it, it was his duty to tell her.’

There was error in both these rulings. The trial appears to have proceeded upon a misconception as to the governing principles of the law of landlord and tenant respecting facts such as are here disclosed.

The tenant takes the premises as he finds them and assumes the risk of their quality in the absence of an express warranty or deceit. There is no presumption that they are in good repair or fit for occupancy. There is no duty implied from the relation of landlord and tenant that the former will keep the premises in a safe condition during occupancy by the latter, or in the same condition in which they were or appeared to be at the beginning of the tenancy. In general the tenant cannot recover against his landlord for personal injuries caused by the defective condition of the premises let unless the landlord agrees to repair, makes the repairs and is negligent in making them. Conahan v. Fisher, 233 Mass. 234, 238, 239, 124 N. E. 13, and cases there collected. Wallquist v. Rogers, 237 Mass. 83, 129 N. E. 417. One qualification of this general rule is that if the landlord knows of some hidden defect in the demised premises, of which the tenant is ignorant, then the obligation rests on the landlord to give notice thereof to the tenant, and for injuries arising from such failure of duty may be held liable in damages. This obligation does not exist in the absence of knowledge on the part of the landlord. It does not impose a duty of inspection in order to find defects and consequent liability for negligent performance of such inspection. This is manifest from a review of our decisions, wherein the pertinent principles of law with their underlying reasons have been stated and applied.

In Bowe v. Hunking, 135 Mass. 380, 46 Am. Rep. 471, a tenant sued her landlord to recover damages caused by the giving way of the tread of a stair due to having--

‘been sawed, about four inches from each end, across to within about an inch of the back side of it and lengthwise cut out about an inch from and parallel to the back side of the tread.’

The landlord knew that--

‘the step had been sawed out and this an examination by the tenant must have disclosed.’

It there was said:

‘There is no warranty implied in the letting of an unfurnished house or tenement that it is reasonably fit for use. * * * In the case at bar, there was no express or implied warranty, and no actual fraud or misrepresentation. If the action can be maintained, it must be on the ground that it was the duty of the defendants to inform the tenant of the defect in the staircase; this duty, if it exists, does not arise from the contract between the parties, but from the relation between them, and is imposed by law. If such a duty is imposed by law, it would seem that there is no distinction, as a ground of liability, between an intentional and an unintentional neglect to perform it; but in such a case as this is, there can be no such duty without knowledge of the defect. * * * A tenant is a purchaser of an estate in the land or building hired; and Keates v. Cadogan, 10 C. B. 591, states the general rule, that no action lies by a tenant against a landlord on account of the condition of the premises hired, in the absence of an express warranty or of active deceit. * * * This rule does not apply to cases of fraud. It does not apply to the sale or delivery of dangerous or noxious articles.’

In Cowen v. Sunderland, 145 Mass. 363, 14 N. E. 117,1 Am. St. Rep. 469, the ‘general rule’ was stated to be--

‘well established by the decisions of this court, that the lessee takes an estate in the premises hired, and takes the risk of the quality of the premises, in the absence of an express or implied warranty by the lessor, or of deceit. * * * When there are concealed defects, attended with danger to an occupant, and which a careful examination would not discover, known to the lessor, the latter is bound to reveal them, * * *. While the failure to reveal such facts may not be actual fraud or misrepresentation, it is such negligence as may lay the foundation of an action against the lessor, if injury occurs.’

In Stevens v. Pierce, 151 Mass. 207, 209, 23 N. E. 1006, it was said:

‘It is well settled that there is no implied covenant in a lease of this kind that the premises are fit for habitation. The doctrine of caveat emptor applies, and the rule is the same in reference to a lease of a dwelling-house as to a conveyance of real estate of any other kind. * * * If a wrong was done the plaintiff such as he alleges, his only remedy was in tort, for fraud and deceit in inducing him to take the lease, or for negligence in failing to inform him, if by reason of a concealed defect which could not readily be discovered, and which was known to the defendant and unknown to him, the house was dangerous to those who might occupy it.’

In Cutter v. Hamlen, 147 Mass. 471, 474, 18 N. E. 397, 398 (1 L. R. A. 429),...