Whitehead v. Comstock & Co.

• Decision Date: 30 October 1903
• Parties: WHITEHEAD v. COMSTOCK & CO.
• Court: Rhode Island Supreme Court

56 A. 446

25 R.I. 423

WHITEHEAD

v. COMSTOCK & CO.

Supreme Court of Rhode Island.

Oct. 30, 1903.

Action by George M. Whitehead against Comstock & Co. Demurrer to declaration sustained.

Argued before STINESS, C. J., and TILLINGHAST and DOUGLAS, JJ.

Hugh J. Carroll, for plaintiff.

Dexter B. Potter and Edward A. Stockwell, for defendants.

TILLINGHAST, J. The declaration in this case sets out a hiring by the plaintiff from the defendants of a certain tenement, and an agreement on the part of the defendants to provide water in said tenement for the use of the plaintiff. It then alleges that it was the duty of the defendants to provide water pipes and faucets in suitable and convenient places in said tenement, and to keep them in suitable and proper condition for the use of the plaintiff and his family. It then avers a breach of this alleged duty on the part of the defendants, and that they "caused to be arranged a place in the cellar under the tenement of the plaintiff to which he and his wife and family were compelled to go in order to procure water for domestic purposes." It further avers that said cellar was dark; that there was a defect in the water pipe which entered the cellar, which defect was known to the defendants, or by the exercise of due care might have been known to them: that by reason of this defect the water escaped from the pipes into and upon the floor of said cellar, causing ice to be formed thereon, and causing dampness in the cellar, whereby the floor became slippery—all of which was known to, or by the use of due care might have been known to, the defendants. The declaration then avers that, because of said condition of things in the cellar, the defendants procured and placed on the floor thereof a plank for the plaintiff and his wife and family to walk upon when going after water, and that it then became the duty of the defendants to see to it that said plank was safe for the use of the plaintiff, together with his wife and family, and especially to see to it that said plank should not become icy and slippery, and dangerous for those who should walk thereon. It then alleges that the defendants neglected to keep said plank free from ice, and fit to be walked upon, as it then became their duty so to do, and that the plaintiff's wife, while procuring water in said cellar, and while in the exercise of due care, by reason of the fact that said board was covered with ice, "or some such slippery substance," slipped and fell, and was greatly and permanently injured thereby. To this declaration the defendants have demurred, on the grounds (1) that no duty to the plaintiff is shown to rest on the defendants, as attempted to be stated in said declaration; (2) that it is not alleged that the defendants had any knowledge of the slippery condition of the plank before or at the time of the happening of the accident in question; and (3) that it appears by the declaration that the proximate cause of the accident was the negligence of the plaintiff's wife.

We think it is clear that the demurrer should be sustained. It is well-settled law that there is no implied warranty on the part of a landlord that the premises let by him are suitable for the purpose for which they were hired. "The maxim caveat emptor applies, and the lessee takes the risk of condition unless he protects himself by express covenant. In other words, the tenant takes the premises 'for better or for worse,' and caunot complain that they were not constructed differently." MacAdam on Laud. & Ten. (3d Ed.) p. 1245. Railton v. Taylor, 20 R. I. 279, 38 Atl. 980, 39 L. R. A. 246, is to the same effect. See, also, Dutton v. Gerrish, 9 Cush. 89, 55 Am. Dec. 45; Royce v. Guggen-heimer, 106 Mass. 201, 8 Am. Rep. 322; Woods v. Colton Co., 134 Mass. 357, 45 Am. Rep. 344; Taylor on Land. & Ten. (8th Ed.) §§ 327, 328. In short, the law undoubtedly is, as held by the court in the well-reasoned case of Purcell v. English, 86 Ind. 34, 44 Am. Rep. 255, that no duty to repair on the part of the landlord arises out of the relation of landlord and tenant; but, on the contrary, this relation devolves that duty upon the tenant, and it is only where the landlord contracts to keep the premises in repair that he is burdened with that duty. And, as said by the court in that case: "The logical conclusion from this principle (and a more firmly settled one there is not in all the books) is that a landlord, not under contract to repair, is not, as a general rule, responsible to the...