Iowa Apartment House Co. v. Herschel, 36 App. D.C. 457

Iowa Apartment House Co. v. Herschel

36 App. D.C. 457 | D.C. Cir. | 1911

Mr. Justice Robb

delivered the opinion of the Court:

1. Bid the court err in denying the defendants’ motion for a directed verdict? It may be conceded as a general proposi*464tion that, in the absence of statute or express covenant or stipulation in the lease, there is no obligation on the part of the lessor to make ordinary repairs on the leased property. 24 Cyc. Law & Proc. p. 1081. But we are not dealing with an ordinary tenancy. The tenancy here relates to an apartment house, —a class of tenancy of comparatively recent origin, and one which, in some respects, at least, is to be distinguished from other classes.

The demised premises, by the express terms of the lease, included “steam heatingand the defendants reserved the right to enter the premises at any reasonable hour, “to malee any necessary repairs.” The “steam heating” referred to in the lease was a part of the heating system for the entire building of many apartments. The central plant of this system was located in the building, and the pipes which supplied plaintiff’s apartment supplied heat to apartments above and below him. This entire system was, of course, under the exclusive care and control of the defendants, who, however, insist that it was the duty of the plaintiff to keep in repair steam pipes, radiators, and appliances in his particular apartment. We cannot assent to this proposition. We think it clear that the obligation to furnish steam heating carried with it the duty of providing and maintaining the means for the proper fulfilment of that obligation. We think this view is sustained by the record. Obviously steam heating could not be furnished unless means were provided. A naked agreement on the part of a dairyman to supply milk would not require him to provide his customers with a receptacle for it when delivered; but there is some difference between milk and steam. The defendants did provide means for fulfilling their contract, and when complaint was made to their superintendent as to the radiators in this apartment, the superintendent did not maintain that the defendants were not responsible therefor, but instructed the plaintiff how to adjust the valves, that the difficulty might be overcome. It was in evidence that there was no way to cut off steam from this apartment without also affecting all other apartments in that section of the building. Is it reasonable to suppose that the *465defendants intended to permit the plaintiff to exercise any control over the main steam pipes in his apartment, and thus interfere with the heating of other apartments ? If the plaintiff was to have no control over steam pipes, why was he to be permitted or required to keep in repair the radiators? He was paying for steam heating, and under his lease he had every reason to assume that the means for furnishing that heating would be kept in repair by his landlord. In fact, the term “heating” is itself suggestive of means as well as heat.

In Bryant v. Carr, 52 Misc. 155, 101 N. Y. Supp. 646, the court, after stating the general rule, said: “But it is nevertheless well settled that the duty of the landlord extends to keeping in proper repair all portions of a building, including fixtures not exclusively demised to a tenant. * * * The application of this principle is entirely irrespective of the rights of the tenant dependent upon a covenant to repair. * * * The scheme of heating the building generally, and the apartments therein separately, was, upon the evidence, it is fair to assume, a general scheme, devolving upon the landlord.” The reasoning in that case is applicable here.

The duty of keeping in proper repair the means whereby steam heating was furnished to the plaintiff necessarily included the duty of proper and reasonable inspection. It must, of course, be conceded that if a tenant, knowing of the immediate necessity of repairs and the landlord’s ignorance of that fact, failed to notify the landlord, and suffered damage to result, the tenant would be estopped to take advantage of his own negligence; but that is quite different from saying that the tenant is charged with the duty of general observation and inspection in this connection. As already pointed out, the central heating plant and all the conducting pipes are admitted to be exclusively within the landlord’s control. It would be unreasonable to hold that the tenant, who is without power over such plant, should in all cases be estopped to claim damages from the landlord for failure to give notice of the need of repairs which sometimes might be rendered necessary by the negligent operation or unskilful control'of said central heating plant. *466Euthermore, the familiarity of those in charge of said plant with its general operation and control would naturally render an inspection by them of that part of the heating system located in an apartment much more satisfactory and complete than an inspection hy the ordinary tenant, who might fail te observe a defect requiring immediate attention, and which would be apparent to one acquainted with the construction and working of the heating system as a whole.

In McKeon v. Cutter, 156 Mass. 296, 31 N. E. 389, relied upon by the defendants, the facts were materially different from those in this case. There the plaintiff’s tenement was in a house containing three other separate tenements, and was supplied with cold water by a pipe leading from the main street,, and with water to supply the hot water boiler, connected with plaintiff’s kitchen range, from a tank in the attic. The suit was for damages caused by water leaking from pipes in plain tiff’s tenement. It appeared that these pipes were for the exclusive use, and under the exclusive possession and control, of the tenant; and in the absence of any covenant requiring the landlord to keep them in repair, it was held that such duty devolved upon the tenant. It does not even appear that the landlord in that case covenanted to furnish the tenant with water. Nor does it appear that there was any clause in the lease indicating that the landlord was to make any repairs upon the demised premises.

Whitehead v. Comstock, 25 R. I. 423, 56 Atl. 446, also cited by the defendants, is not in point. In that case the plaintiff claimed damages for an injury sustained by slipping and falling upon ice in the cellar of the tenement leased of the defendants, the condition of said cellar being the result of a defective water pipe. There was no allegation “that the defendants agreed to keep the premises in question in repair, or that they agreed or promised to do anything in connection with the use thereof by the plaintiff except to provide him with water, and this they did.” The distinction between that case and the present is apparent.

It is insisted, however, that the plaintiff, by his acts of omis*467sion or commission, contributed to the damage for which he sues, and hence that he cannot recover. The plaintiff testified that the air valves in the radiators were left exactly as they were when the steam was turned off in the spring, and that they were adjusted in accordance with instructions from defendants’ superintendent; that the valve in the pipe which had supplied the kitchen radiator was also untouched after steam was turned off in the spring, and that after the accident defendants screwed on a cap to the end of this pipe in place of the valve. The plaintiff further testified, and this testimony was not denied, that upon one occasion defendants’ superintendent had let him into his apartment, plaintiff having left his keys in the apartment. It was admitted that plaintiff notified one of the defendants that he was going away, and that he then arranged about his rent. The plaintiff testified that he also notified defendants’ superintendent that he was to be gone about a month. This statement the superintendent did not deny. From the letter of the defendants to the plaintiff it appears that the heating plant had not been put in operation when the plaintiff went away; in fact, it is apparent from that letter that it must have been at least two weeks after plaintiff’s departure before steam was turned on. Having every reason to believe that the defendants were provided with means to enter his apartment; that he would be away when the steam plant was put in operation; having no knowledge of any special defects in the heating appliances in his apartment, and knowing that it was the duty of the defendants to keep in reasonable repair and make proper inspection of such appliances, we think it was for the jury to say whether the plaintiff was chargeable with negligence in that respect. This was the view entertained by the learned trial justice.

Judgment affirmed, with costs.