320 Mass. 537 | Mass. | 1946
The minor plaintiff (hereinafter called the plaintiff) was hurt by a fall due to a defective piazza railing of a summer dwelling owned by the defendant and rented furnished to the plaintiff’s father. In this action of tort the declaration is in four counts. Counts 1 and 2 seek damages for the plaintiff’s injuries. Counts 3 and 4 are by her father for consequential damages. G. L. (Ter. Ed.) c. 231, § 6A, as inserted by St. 1939, c. 372, § 1. All four counts allege the defendant’s ownership, the letting of the furnished house to the plaintiff’s father for a period of one week, and the plaintiff’s injuries. Counts 1 and 2 allege that the "railing gave way because of its defective condition and the defective and unsafe way in which it was held in place; that such defective conditions existed at the time of the letting . . . [and] were not known to her before her injuries.” Count 1 contains an allegation that the defect "should have been known to the defendant.” Count 2 contains an allegation that "the defendant negligently suffered such defective conditions to exist at the beginning of and during her father’s tenancy.” Count 4 is analogous to count 1. Count 3 is substantially the same as count 4, but omits the allegation that the defect should have been known to the defendant. At the trial the parties agreed that count 3 sounds in contract, and that the other three counts sound in tort.' The judge allowed the defendant’s motion to direct a verdict in his favor on each count, and the plaintiffs excepted.
The jury could have found these facts: The defendant owned a double cottage at Salisbury Beach, which was furnished. He rented the southerly half of the cottage to the plaintiff’s father for one week beginning August 21, 1943.
1. There was no error in the direction of the verdicts on the plaintiff’s counts 1 and 2, which are in tort. The general rule is that the landlord is not liable to the tenant for defects in the premises existing at the time of the letting ■unless they are hidden defects of which he is aware and does not warn the tenant. Stumpf v. Leland, 242 Mass. 168, 171. Condon v. Winn, 252 Mass. 146, 148. Pittsley v. Acushnet Saw Mills Co. 299 Mass. 252, 254. Hacker v. Nitschke, 310 Mass. 754, 756. The evidence did not permit a finding that the defendant knew of the defective condition of the railing. Zarrillo v. Stone, 317 Mass. 510, 512. The defendant had no duty of inspection and no “consequent liability for negligent performance of such inspection.” Stumpf v. Leland, 242 Mass. 168, 171.
Certain cases relied upon by the plaintiff have no pertinency. In Domenicis v. Fleisher, 195 Mass. 281, the defect was in a portion of the building over which the landlord retained control. In Nash v. Webber, 204 Mass. 419, and in Crowe v. Bixby, 237 Mass. 249, there was evidence of express undertakings to repair by the landlord.
2. We think that there was error in the direction of a verdict on count 3, which is by the plaintiff’s father, the actual tenant. Count 3 is a sufficient count in contract, and was properly added even though the writ still described the action as in tort. G. L. (Ter. Ed.) c. 231, § 7, Sixth, as amended by St. 1939, c. 67, § 1. Hacker v. Nitschke,
3. We think that there also was error in the allowance of the motion for a directed verdict on count 4. This count in tort sufficiently alleges a breach of an implied warranty that the house and its appointments were fit for immediate occupancy. “An action of tort, as well as an action of contract, may be maintained upon a false warranty.” Schuler v. Union News Co. 295 Mass. 350, 353, and cases cited. Pearl v. Wm. Filene’s Sons Co. 317 Mass. 529, 531.
It follows that the exceptions of the plaintiff Barbara Ackarey must be overruled and those of the plaintiff Peter M. Ackarey must be sustained.
So ordered.
