Towne v. Thompson

• Decision Date: 26 July 1895
• Citation: 44 A. 492,68 N.H. 317
• Court: New Hampshire Supreme Court
• Parties: TOWNE v. THOMPSON.

44 A. 492

68 N.H. 317

TOWNE

v. THOMPSON.

Supreme Court of New Hampshire. Merrimack.

July 26, 1895.

Action by Edward C. Towne against Horace Thompson. Judgment sustaining demurrer to complaint.

The declaration is as follows: "In a plea of the case for that the defendant on, to wit, February 1, 1893, and for a long time previously, was the owner of a certain tenement house situated on South Spring street, in said Concord, and on said February 1, 1893, leased one of the tenements in said house to one Addie Hardy, who was a boarding-house keeper, and who intended to use said tenement for the keeping of boarders, of which the said defendant had knowledge; that said Mrs. Hardy contiued to occupy said premises and pay the rent therefor to said defendant until, to wit, May 1, 1893, and kept several boarders in said tenement, among whom was the plaintiff; that it was then and there the duty of said defendant to keep and maintain said tenement in a healthful and cleanly condition, to provide proper means for ventilating the rooms and basement of said tenement, and to provide suitable drains, sewers, and vaults, properly ventilated and constructed, for the use of said tenants and lodgers in said tenement; and the plaintiff avers that said Thompson did not maintain and keep said tenement in a healthful and cleanly condition, and did not provide proper means for ventilating the rooms and basement of said tenement, and did not provide suitable drains, sewers, and vaults, properly ventilated and constructed, for the use of said tenants and lodgers, but, on the contrary, willfully, improperly, and negligently permitted refuse and decayed matter and water to remain in and around said tens merit and id the basement thereof, and suffered and permitted said basement to remain in a filthy, unhealthful, and unventilated condition, and constructed and maintained in said basement an unsuitable, improperly constructed vault and privy. And the plaintiff avers that, not knowing the true condition of said tenement and basement set forth as aforesaid, he commenced boarding and lodging with Mrs. Hardy in said tenement on, to wit, February 1, 1893, and continued to live in said tenement until, to wit, April 22, 1893; that in consequence and as a direct result of the aforesaid filthy, improper, and unhealthful condition of said tenement and basement, he became sick and was attacked with a severe and dangerous disease, to wit, diphtheria, and was confined to his bed for a long time, and suffered great bodily and mental pain, and was obliged to expend large sums of money for nursing, medicine, and medical attendance, and was quarantined by the board of health of said city, and not permitted to leave said house for a long period of time; and the plaintiff further avers that said defendant prior to the illness of said plaintiff had been notified by the health officers of said city of Concord of the condition of said tenement and basement, as hereinbefore set forth, and directed to put the same in suitable and proper condition; that said defendant paid no attention to said notice, and permitted said premises to remain in the same condition until they occasioned the illness of the plaintiff set forth as aforesaid, to the damage of the plaintiff, as he says, the sum of one thousand dollars ($1,000)." The plaintiff amended by filing the following additional count: "In a further plea of the case for that the defendant on the 1st day of February, 1893, and for a long time both before and after that day, was the owner and possessor of a certain tenement house, together with the appurtenances, situated at the corner of South Spring and Marshall streets, in said Concord, and in which said plaintiff from said February 1 to April 22, 1893, rightfully inhabited and dwelt; that said defendant, well knowing the premises, on said February 1st, and for a long time both before and after said day, constructed and maintained upon said premises faulty, insufficient, improper, and defective drains and sewers, a faulty, insufficient, improper, and defective privy, a faulty, insufficient, improper, unventilated, and defective cellar, and on said February 1st, and for a long time both before and after said day, said defendant, well knowing the premises, unjustly suffered and permitted to be in and remain upon the said premises faulty, insufficient, improper, and defective drains and sewers, a faulty, insufficient, improper, and defective privy, a faulty, insufficient, improper, unventilated, and defective cellar; and the defendant on said February 1st, and for a long time both before and after said February 1st, permitted said faulty, insufficient, improper, unventilated, and defective drains, sewers, privy, and cellar to be out of repair, and, although notified of their aforesaid condition, and agreeing to change, remedy, and repair the same, the defendant, well knowing the premises, neglected to change, remedy, and repair the same, wherefore, and by means thereof, on divers days and times between said February 1 and April 22, 1893, and while said premises were being used in a reasonable and ordinary manner, and for the purposes for which they were let, large quantities of excrement, filth, stagnant and unwholesome water, penetrated, issued, and flowed from out of said drains, sewers, and privy into and upon the floor of said cellar in said tenement, and also thereby did create divers noisome, noxious, offensive, and unwholesome smells, odors, vapors, gases, and stenches, during the time aforesaid in the tenement aforesaid, by means of all which the plaintiff, not knowing the true condition of the said tenement, became on, to wit, April 6, 1893, sick with a dangerous disease, to wit, diphtheria, and was confined to his bed and house, and was thereby made to suffer great bodily and mental pain, and has suffered lasting and permanent injury to his health, and was put to great expense of money and loss of time in trying to effect a cure." The defendant demurred.

Sargent & Hollis and William H. Sawyer, for plaintiff.

Leach & Stevens and Frank N. Parsons, for defendant.

WALLACE, J. The possession of leased premises is in the tenant....