Thomas v. Lane
| Decision Date | 22 June 1915 |
| Citation | 221 Mass. 447,109 N.E. 363 |
| Parties | THOMAS v. LANE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Report from Superior Court, Middlesex County; John F. Brown, Judge.
Action by Gwilym Thomas against Susan M. Lane. Verdict directed for defendant, and case reported. Judgment rendered on the verdict for defendant.
Warner V. Taylor and Henry P. Fowler, both of Boston, for plaintiff.
Peabody Arnold, Batchelder & Luther, and Willard B. Luther, all of Boston, for defendant.
The plaintiff in this action was walking on Inman street in Cambridge during the evening of September 8, 1912. As he passed the house numbered 33 on that street, one Eisenhauer who was sitting on the front stoop, invited him to come up and sit down awhile. Thereupon the plaintiff went up to the top of the front steps, some eight in number, shook hands with Eisenhauer and put his hand upon a handrail at the side of the steps. The handrail gave way and the plaintiff fell to the ground with Gill v. Middleton, 105 Mass. 477, 7 Am.Rep. 548.
The defendant in effect has contended that the decision in Gill v. Middleton is in conflict with the subsequent cases of McLean v. Fiske Wharf & Warehouse Co., 158 Mass 472, 33 N.E. 499; Kearines v. Cullen, 183 Mass. 298, 67 N.E. 243; Galvin v. Beals, 187 Mass. 250, 72 N.E. 969; Phelan v. Fitzpatrick, 188 Mass. 237, 74 N.E. 326, 108 Am.St.Rep. 469; Dalton v Gibson, 192 Mass. 1, 77 N.E. 1035, 116 Am.St.Rep. 218, and Rolfe v. Tufts, 216 Mass. 563, 104 N.E. 341, and is no longer law. With the possible exception of a statement made in Galvin v. Beals, 187 250, 252, 72 N.E. 969, 970, there is nothing that even gives countenance to this contention. Mr. Justice Lathrop, in Galvin v. Beals said:
'The general rule in this commonwealth must be considered as settled that a tenant cannot recover against his landlord for personal injuries occasioned by the defective condition of the premises let, unless the landlord agrees to repair, makes the repairs, and is negligent in making them.'
After stating that this is the 'general rule' in this commonwealth, Mr. Justice Lathrop on the next page deals with the exception to the general rule (although he did not speak of it as an exception) created by the decision in Gill v. Middleton. He there pointed out that the plaintiff in the case of Galvin v. Beals, had not brought herself within the exception to the general rule created by Gill v. Middleton because there was no evidence in that case that the landlord (who was the defendant in Galvin v. Beals) undertook to repair that part of the demised premises which gave way and caused the accident to the plaintiff. The rule in Gill v. Middleton was applied Riley v. Lissner, 160 Mass. 330, 35 N.E. 1130; Buldra v. Henin, 212 Mass. 275, 98 N.E. 863, and McLeod v. Rawson, 215 Mass. 257, 102 N.E. 429, 46 L.R.A.(N.S.) 547; it was referred to as law in Dix v. Old Colony St. Ry., 202 Mass. 518, 523, 89 N.E. 109, 24 L.R.A.(N.S.) 567; Stewart v. Cushing, 204 Mass. 154, 157, 90 N.E. 545, and Rolfe v. Tufts, 216 Mass. 563, 566, 104 N.E. 341, and must be taken to be the law of the commonwealth.
We assume that on the facts stated above (if there had been no other facts in the case at bar) Eisenhauer could have recovered against his landlord under the doctrine of Gill v. Middleton, if he and not his invitee had been the person injured. But the question presented in the case at bar is whether the plaintiff, who went up the steps and used the railing upon Eisenhauer's invitation, can recover from Eisenhauer's landlord.
It is plain that the case at bar does not come within the doctrine of Domenicis v. Fleisher, 195 Mass. 281, 81 N.E. 191. The doctrine of Domenicis v. Fleisher applies to cases where the landlord is under an obligation to keep common passageways (remaining in his control), or to keep demised premises otherwise in control of the tenant in a safe condition for the use of the tenant and those entering the premises under the tenant's right.
The distinction between a covenant or agreement to keep premises in a reasonably safe condition for the tenant and those entering under the tenant's right on the one hand and on the other hand a covenant or agreement to make all necessary repairs upon premises is pointed out and explained in Miles v. Janvrin, 196 Mass. 431, 433, 82 N.E. 708, 13 L.R.A.(N.S.) 378, 124 Am.St.Rep. 575; and again in Flanagan v. Welch, 220 Mass. 186, 192, 107 N.E. 979.
We come therefore to the question whether a landlord who gratuitously undertakes to repair demised premises and does it negligently, is liable under the doctrine of Gill v. Middleton, ubi supra, to any one but the other party to the contract by which the landlord undertakes (gratuitously) to make the repairs which are negligently made.
Tuttle v. Gilbert Manuf. Co., 145 Mass. 169, 13 N.E. 465, was a case in which the landlord had failed for an unreasonable time to make specific repairs which he had agreed to make upon the demised premises and in consequence of his failure the tenant had sustained personal injuries for which he undertook to hold the landlord liable. In deciding that the landlord in that case was not liable under those circumstances it was said by this court that if an action had been brought against a third person who had contracted to make the repairs which the landlord had agreed to make and the third person had delayed performing the contract for an unreasonable time, the plaintiff could not have recovered from him compensation for personal injuries suffered by reason of the failure to make the repairs. And it was held that the liability of a landlord who had agreed to make repairs and had delayed making them for an unreasonable time stood on the same footing as that of a third person who had made such a contract and had been guilty of unreasonable delay in performing it. We are of opinion that the same reasoning applies in the case at bar and that where a landlord gratuitously or for hire undertakes to make repairs upon demised premises he is under no greater liability in case the repairs are negligently made than a third person would have been if a third person had undertaken to make the same repairs either gratuitously or for hire and had made them negligently.
Upon the question whether a third person under these circumstances is liable to any one but the other party to the contract, Winterbottom v. Wright, 10 M. & W. 109, is the leading case. That was a case in which the defendant had undertaken to provide the Postmaster General with a mail coach in which to carry the mails and the plaintiff, who had been employed to drive the mail coach, was injured through the breaking down of the coach from what would have been negligence in its maintenance or construction if any duty in the premises had been owed by the defendant to the driver. It was held that the plaintiff not being a party to the contract by which the defendant had undertaken to provide a safe coach no duty was owed by the defendant to him in the premises, and that he could not recover although the defendant had performed his contract with the Postmaster General in a negligent way.
Winterbottom v. Wright has been cited with approval in Albro v Jaquith, 4 Gray, 99, 102, 64 Am.Dec. 56; Davidson v. Nichols, 11 Allen, 520, 523, and Osborne v. Morgan, 130 Mass. 102, 104, 39 Am.Rep. 437, and is the law of the commonwealth. See Lebourdais v. Vitrified Wheel Co., 194 Mass. 341, 80 N.E. 482. Cases in other jurisdictions affirming the doctrine may be found below. [1]...
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