Wunder v. McLean

• Decision Date: 21 April 1890
• Docket Number: 273
• Parties: J. A. WUNDER ET UX. v. J. H. McLEAN ET AL
• Court: Pennsylvania Supreme Court

19 A. 749

134 Pa. 334

J. A. WUNDER ET UX. v. J. H. McLEAN ET AL

No. 273

Supreme Court of Pennsylvania

April 21, 1890

Argued April 9, 1890

APPEAL BY DEFENDANTS FROM THE COURT OF COMMON PLEAS NO. 3 OF PHILADELPHIA COUNTY.

No. 273 January Term 1890, Sup. Ct.; court below, No. 90 September Term 1888, C.P. No. 3.

On September 5, 1888, Joseph H. Wunder and Rosanna, his wife, in right of said wife, brought trespass against James H. McLean and Catharine Craven, to recover damages for an alleged nuisance affecting the dwelling of the plaintiff's wife. Issue.

At the trial, on October 8, 1889, the court, on motion of the defendants, made an order that the jury be permitted to view the premises where the nuisance complained of was alleged to exist, and the jury accordingly examined the same. The testimony adduced tended to show the following facts:

Rosanna Wunder was the owner of a house and lot, No. 4239 Leibert street, in Manayunk, Philadelphia, and had resided there for thirty years. Catharine Craven owned and occupied the premises No. 139 Mechanic street, and the adjoining premises No. 141 Mechanic street, were owned by James H. McLean, but occupied by his tenant, Edward Rooney, to whom they were first leased in 1882 or 1883. The lots of Mrs. Craven and Mr McLean were bounded at the rear by Mrs. Wunder's property. Upon the lots of the defendants were privies, used by the occupants of the respective premises, for which there was a common cess-pool. According to the testimony for the plaintiffs, this cess-pool was less than two feet, but according to the testimony for the defendants, more than three feet, from the wall of the plaintiffs' house.

Testimony for the plaintiffs tended to show that for about four years prior to the trial their cellar was made very offensive by foul matter coming through the cellar wall, on the side of the house next to the cess-pool of the defendants, and that the condition of the cellar was at its worst about August 6, 1888, after a violent rain storm which had flooded many cellars in the vicinity. Mrs. Wunder testified that she first complained of the nuisance in 1886. Testimony for the defendants tended to show that her first complaint was in 1888, after the storm mentioned; that soon after its occurrence, Mr. McLean, in consequence of a notice from the board of health, had the cess-pool cleaned out and its walls examined, when they were found to be in good condition; that they were not cemented, as the cleaning out was thought to be sufficient; and that after that cleaning the cellar of the plaintiffs was in good condition. The testimony disclosed the fact that there was another cess-pool near to the plaintiffs' house, located on property of one Mrs. Higgins.

The above-stated facts having been shown, the court interrupted the trial and inquired whether either of the parties had dug down to see what the actual cause of the nuisance was. Both parties said that they had not; whereupon the trial judge asked that a laborer be sent to dig, and see whether there was a leak or not, stating that he could not sustain a verdict either way until such was done, as otherwise it would be but conjecture at the best. Both sides agreeing that such should be done, the case was adjourned till Monday, October 14, 1889, at which time testimony was adduced to the effect that, during the interval, a laborer in the employ of the board of health had dug down between the cess-pool and the plaintiffs' house, and had ascertained that the filth came from that cess-pool. Further testimony was produced to show the extent of the plaintiffs' damages.

At the close of the testimony, the court, FINLETTER, P.J., charged the jury as follows:

[From the evidence you have heard to-day, there can be no doubt that defendants are liable; it is now only a question of damages. Plaintiffs are entitled to compensation for the damages. Plaintiffs are entitled to damages to be computed from the time nuisance began.]

The defendants request the court to charge:

1. That, as to the defendant, James H. McLean, there is no evidence that the premises were out of repair at the time they were rented, and the verdict must be in favor of the said James H. McLean.

Answer: Refused.

2. The defendant, James H. McLean, had no right to enter to make repairs during the term of the lease to Edward Rooney, and the verdict must be for the defendant.

Answer: Refused.

3. As the evidence shows that at the time of the alleged damage to plaintiff, the premises No. 141 Mechanic street were leased by the defendant, James H. McLean, to one Edward Rooney, the verdict must be for the defendant, as to the defendant, James H. McLean.

Answer: Refused.

The jury rendered a verdict for the plaintiffs for $400. A rule for a new trial having been discharged, judgment was entered upon the verdict, whereupon the defendants took this appeal assigning for error:

1-3. The answers to defendants' points. to

4. The instruction embraced in []

The judgment is reversed, and a venire facias de novo awarded.

Mr Fred. J. Shoyer (with him Mr. John S. McKinlay), for the appellants:

1. The charge of the court disregarded well-settled principles defining and discriminating between the liability of a landlord and that of a tenant, for damages to a third party, caused by a nuisance on the demised premises. Primarily the tenant is always liable for such damages arising from a bad state of repair of premises of which he has possession: Bears v. Ambler, 9 Pa. 193. The statement in Long v. Fitzsimmons, 1 W. & S. 530, that the tenant is not bound to make "lasting and substantial repairs," might be confusing, had not the same judge, in Cornell v. Vanartsdalen, 4 Pa. 370, declared that the word repairs must be defined in the sense in which it is commonly understood, viz., as the restoration to a sound state of what has fallen into partial decay or dilapidation; mending or refitting. Without a provision in the lease that he shall make repairs, the landlord is under no obligation to do so: Moore v. Weber, 71 Pa. 432; Hazlett v. Powell, 30 Pa. 298; nor can he enter for that purpose without becoming a trespasser: Jackson & Gross on L. & T., §§ 627, 628. The case of Grier v. Sampson, 27 Pa. 183, does not in any way affect our position, as in that case there was no tenant in possession.

2. The cases that are most similar to the present one, in their facts and circumstances, are the following, which hold that although the landlord is liable, if the premises are so constructed, or in such a condition at the date of the lease, that their continued use by the tenant must result to the injury of a third person, yet the landlord is not liable, where the tenant has been negligent in the use of the premises, for not making repairs necessary to abate the nuisance: Knauss v. Brua, 107 Pa. 85; Somers's App., 6 W.N. 441; Fow v. Roberts, 108 Pa. 489. Every circumstance of law and fact, in the present case, operates to relieve the landlord from liability. He had made no covenant to repair, and the tenant was bound to make...