United Shoe Machinery Corporation v. Paine
| Decision Date | 31 May 1928 |
| Docket Number | No. 2226.,2226. |
| Citation | 26 F.2d 594 |
| Parties | UNITED SHOE MACHINERY CORPORATION v. PAINE. |
| Court | U.S. Court of Appeals — First Circuit |
James W. Remick, of Concord, N. H. (George T. Hughes, of Dover, N. H., on the brief), for plaintiff in error.
Jonathan Piper, of Concord, N. H. (William N. Rogers and Demond, Woodworth, Sulloway & Rogers, all of Concord, N. H., on the brief), for defendant in error.
Before BINGHAM and JOHNSON, Circuit Judges, and HALE, District Judge.
This is an action to recover damages for personal injuries, which the plaintiff sustained, due to a fall while passing over a common stairway at the entrance of the defendant's building in North Conway, N. H. There was a trial by jury, and a verdict and judgment for the plaintiff.
The defendant was the owner of a one-story building in North Conway, leased to tenants. One portion of it was occupied by the Conway Wood Heel Company, one of its subsidiaries, for manufacturing purposes. The greater portion of the balance of the building was divided into offices, one of which was occupied by the Conway Box Company, likewise a subsidiary, one by the defendant, and one by Frank E. Kennett. The entrance to the building was over cement steps leading to a hallway located between the portion of the building occupied for manufacturing purposes and the portion occupied for office purposes, and the stairway and hallway were used in common by the tenants and their employees in going to and from the respective premises. The steps were uncovered, and the slope of the roof of the building was towards the steps. Under the eaves and above the steps was an open gutter or eaves trough, which had a tendency to fill up and freeze in winter, and throw dripping water on the top step, and form an icy surface there. The slant of the roof at that point and the fact that the building was heated increased the tendency of the water to be thrown upon the steps. Due to this construction, it was necessary in the winter time to frequently shovel and sand the steps, in order to render them safe.
The plaintiff was employed as a bookkeeper by Kennett and worked in the office occupied by him. While leaving the building in the course of his employment on the morning of February 2, 1926, he slipped on the top step and was injured. The plaintiff's evidence tended to show that ice had formed on that step from the drippings of the open gutter; that the steps had not been sanded; that it had snowed that morning, as well as the day before; that the ice that had formed on the top step was concealed from view by a slight coating of snow; and that as the plaintiff stepped down on this step he slipped and fell, because of the ice under the snow.
In addition to this building and the businesses of the Heel Company and the box company, the defendant had other property and business interests in Carroll county, New Hampshire, of which Mr. Kennett had charge as general agent of the defendant. He was also assistant treasurer of the Heel Company and of the Box Company. There were no written leases disclosing the terms under which the tenants occupied their respective portions of the building. In addition to its appearing that there was no lease of the stairway and hallway, to any tenant, and that no tenant ever agreed to take care of the steps and hallway, there was evidence that the defendant, through its general agent, Kennett, undertook to maintain the steps in a safe condition for the tenants and their employees by having them cleared of snow and sanded. The testimony on this latter point was conflicting. The evidence in relation to it came largely from Mr. Kennett, and his testimony was in itself conflicting and contradictory. Nevertheless, there are portions of his testimony in which he testified positively that he had caused the snow and ice to be removed from the steps, and that his relation to the care of the steps had been in the capacity of agent for the defendant.
There are 22 assignments of error. The first 11 relate to the admission of evidence, the twelfth to its exclusion, the thirteenth to the court's refusal to grant the defendant's motion for a directed verdict, the fourteenth, fifteenth, sixteenth, seventeenth, and eighteenth to the refusal of the court to grant the defendant's requests for instructions, the nineteenth and twentieth to the charge and the twenty-first and twenty-second to the submission of the question of agency to the jury as a question of fact.
In its thirteenth assignment of error, the defendant relies upon two grounds, wherein it contends that the court erred in denying its motion for a directed verdict: (1) That the defendant did not reserve and/or exercise control of the common entrance; and (2) that it did not undertake by duly authorized agent to keep the steps free and clear from snow and ice, or sand the same.
As to its first ground, it contends that, when a landlord retains possession of the common entrance to leased premises, the law does not impose upon him a duty to use reasonable care to keep the common entrance in a safe condition, unless he is shown to have actually exercised control of the common entrance, and that even then the duty to use care to keep it reasonably safe extends only to general repairs, and does not impose on the landlord a liability for injuries resulting from temporary obstructions arising from natural causes, such as accumulations of ice and snow, unless he has agreed to maintain the common stairway or entrance free from such obstructions, or has actually undertaken such duty, by entering upon its performance in a manner such as to entitle those using the common entrance to rely upon his performance of such duty.
In support of this contention the defendant cites cases from other states than New Hampshire, in which the cause of action arose, to wit, Woods v. Naumkeag Steam Cotton Co., 134 Mass. 357, 45 Am. Rep. 344; Looney v. McLean, 129 Mass. 33, 37 Am. Rep. 295; Nash v. Webber, 204 Mass. 419, 90 N. E. 872; Bell v. Siegel, 242 Mass. 380, 136 N. E. 109, 25 A. L. R. 1261; Caruso v. Lebowich, 251 Mass. 477, 146 N. E. 699; Palladino v. Domenico De Stefano, 258 Mass. 12, 154 N. E. 187; Purcell v. English, 86 Ind. 34, 44 Am. Rep. 255; Shindelbeck v. Moon, 32 Ohio St. 264, 30 Am. Rep. 584; Oerter v. Ziegler, 59 Wash. 421, 424, 109 P. 1058. But as the cause of action arose in New Hampshire the rights of the parties are to be determined by the law of that state and as generally understood and applied.
In the recent case of Gobrecht v. Beckwith, 82 N. H. 415, 135 A. 20, 52 A. L. R. 858, it appeared that the plaintiff and his wife were tenants occupying one room on the third floor of a block owned by the defendant; that upon that floor was a bathroom provided for the common use of the female tenants of the block; that it was a small inside room, without windows; that it had two doors, one of which was unused, and a transom over one of the doors; that when the doors were closed the transom was the only means for ventilation; that hot water was supplied by an instantaneous gas heater installed in the bathroom without a flue, and was operated by gas known as water gas, containing 30 to 40 per cent. of carbon monoxid, an extremely poisonous gas; and that on December 19, 1922, the plaintiff's wife, while taking a bath, was rendered unconscious by the gas coming from the heater, resulting in permanent injury to her health.
In that case the defendant requested the court to charge the jury that a landlord is under no legal duty to repair the leased premises, and that, in the absence of a warranty or deceit, the tenant takes the premises as he finds them, and cannot recover against the landlord for injuries received by reason of defects therein.
In answer to this, the court pointed out that the rule contended for was applied only in cases where the leased premises had passed out of the control of the landlord and into the possession and control of the tenant; that lack of control of the landlord was one of the essential elements necessary to bring a case within that rule. It was there said:
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