Walsh v. Schmidt

• Decision Date: 07 September 1910
• Citation: 206 Mass. 405,92 N.E. 496
• Parties: WALSH v. SCHMIDT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

206 Mass. 405

92 N.E. 496

WALSH v. SCHMIDT.

Supreme Judicial Court of Massachusetts, Hampden.

September 7, 1910

COUNSEL

R. J. Morrissey for plaintiff.

Frederic A. Ballou, for defendant.

OPINION

KNOWLTON C.J.

This is an action of tort, to recover for personal injuries received by the plaintiff while standing upon a chair on the back piazza of a dwelling house, washing a window. One leg of the chair broke through the floor near the wall of the building and the plaintiff fell. The defendant was the owner of the house which the plaintiff's husband occupied as his tenant. The declaration is for negligence of the defendant in allowing the floor to become rotten and defective. The plaintiff and her husband and his family had lived in the house about five months at the time of the accident. The question before us is whether there was evidence on which the plaintiff could recover.

It is plain that there was no implied contract or duty on the part of the defendant to keep the premises in a safe condition while they were in possession of the tenant. Galvin v Beals, 187 Mass. 250, 72 N.E. 969; Miles v. Janvrin, 196 Mass. 431, 82 N.E. 708, 13 L. R. A. (N. S.) 378, 124 Am. St. Rep. 575; s. c. 200 Mass. 514, 86 N.E. 785. There was no allegation or evidence that there was any fraud on the part of the defendant or any liability for the concealment of a dangerous condition of which he had knowledge. Clogston v. Martin, 182 Mass. 469, 65 N.E. 839; Booth v. Merriam, 155 Mass. 521, 30 N.E. 85; O'Malley v. Twenty-Five Associates, 178 Mass. 555, 60 N.E. 387. Indeed, the evidence tended to show, not only that the defendant had no knowledge that the floor was not safe at the time of the letting, but that there was nothing in the appearance of it to indicate that it was unsafe.

There was no implied warranty that the house or the piazza floor was safe and fit for occupancy at the time of the letting. Bowe v. Hunking, 135 Mass. 380, 46 Am. Rep. 471; Booth v. Merriam, 155 Mass. 521, 30 N.E. 85; Tuttle v. Gilbert Mfg. Co., 145 Mass. 169, 13 N.E. 465.

In the plaintiff's declaration there is an averment 'that the defendant expressly warranted the premises to be fit and safe for the occupation of the plaintiff's husband and family.' The claim of a right to recover upon this averment presents the only question in the case which is in the least doubtful. Unless there was an express warranty covering the condition which caused the accident, it is plain that there is no cause of action. The testimony of the plaintiff on this point was that the defendant 'said he fixed the house all right. It was fit for anybody to live in it.' This was before the contract of hiring was made. She testified that he 'said he would fix it up to live in--fix it up in good shape.' 'My husband asked him what kind of a house it was, if it was all right. He said, 'Yes.' * * * He said it be all right and a good place to live in. He kept talking to my husband. I did not pay any attention.' The testimony of the plaintiff's husband was of similar purport. It appeared that both the plaintiff and her husband looked over the house and examined it as much as they chose. They passed over this piazza several times a day during the five months before the accident. The condition of the floor could have been as easily discovered at any time by the plaintiff or her husband as by the defendant. The floor was open to inspection from below as well as from above. Neither the plaintiff nor her husband ever complained to the defendant of the condition of the floor.

The rule of caveat emptor applies to the purchase and hiring of real estate, and the question before u...