Marshall v. Cohen

Lochrane, Chief Justice.

This was an action brought by a tenant against the landlord to recover damages done to goods on account of an alleged nuisance kept in the upper part of a building, being a water-closet, on account of which water overflowed, and his goods below were injured. The proof shows that the water-closet complained of was upon the premises at the time the party rented the store, and the closet itself was not a nuisance, but convenience for the other tenants living in the upper part of the building. The proof shows that this damage was done, not on account of any defect in the water-closet or its pipes, etc., but that persons using it threw obstructions into it, and thus caused the overflow and damage. The jury-found for the plaintiff, and the case comes before us on the charges and refusals to charge of the Court below. The Judge charged the jury “ that if they found, from the testimony in the case, that the defendant was the owner of the whole building, and the plaintiff was a tenant of a part of said building, and that damages accrued through the leakage of the water-closet, the defendant was liable for the damages sustained ; that the other tenants of the building were to be considered as the agents of the defendant in obstructing the water-closet, and that defendant was bound to keep the premises in repair.”

The Judge refused to charge that, if the jury found plaintiff had the same access as any other tenant, defendant was not liable, and also that the defendant was not responsible unless some agreement or covenant was proved by which the defendant had agreed to keep said store and premises in good condition.

The only question in the case is the fact whether Mrs. Marshall is liable for the damage done by the overflow of the closet under the facts in this case. It is contended that she is not, because the pipes and fixtures were all in good order, and the damage was the result of no fault of hers ; and the closet being on the premises at the time of renting, that it was not covenanted by her as to its use, and to keep it free from obstructions, and that, this being the act of other tenants, she is not liable.

There is nothing clearer, as a principle of law, than that a party is liable for damages done by himself or his agents in maintaining or keeping up a private nuisance. The evidence in this ease shows that this closet was, at times, in very bad order and condition, that it was kept in this condition. Wray, one of the witnesses, says it was open day and night, not only to inmates but to outsiders. Robider, the plumber, advised her to close it up. And it appears, previous to the damage sued for, there had been a previous leakage, of which she was notified by the plaintiff, and she promised to fix it. The continuance of the closet was for the accommodation of her other tenants who paid her rents, and her continuance of the closet was for a consideration. If she allowed a water-closet for her other tenants to remain in the condition testified to, and from this cause damage did actually occur to the plaintiff, why would she not be liable ? Upon legal principles, can she do damage to one tenant by a convenience erected for others, and because these tenants so abuse the use as to cause the damage, protect herself as landlord because of want of covenant ? A general principle may be recognized that one who permits a wrong to be done is responsible as he who actually does it. For, in torts, all are regarded as principals. This damage was the result of a nuisance kept by the landlord upon the premises. And that it was his own tenants who made it so does not change the charge or remove the liability. One who erects upon his own land anything which, by ignition, burns down the house of one adjoining, is liable. But we need not multiply cases analogous in principle; they are found all through the reports. We need not gather them together, for the extracted principle of liability is constantly recognized. We have examined the ease upon the ground that it may be assimilated to that of a house rented to a tenant who violates law by keeping 'more gunpowder than the law allows, and by this act an explosion takes place which injures another, and, under such facts, the landlord would not be liable, but we see the distinction which marks the cases in the case of a tenant whose own act, not by its connection with the landlord, causes the damage. As if, in this case, the tenants had wantonly thrown down buckets of water on the floor above and caused this damage, the landlord would not be liable. But the act wTas produced by a water-closet which, if not kept clean and in proper order, was, per se, a private nuisance, and the ordinary and natural consequences of which was to produce a nuisance in the inherent character of the thing itself. And when there was proof, as in this case, of this consequence being known to the defendant, by information and by actual notice of a previous leak, we think the reasons of the liability appears, and that this case falls within the rule in Treadwell vs. Davis, 39 Georgia Reports. And we therefore affirm the judgment of the Court below.

Judgment affirmed.

Case Details

Case Name: Marshall v. Cohen

Court Name: Supreme Court of Georgia

Date Published: Jul 15, 1871

Citation: 44 Ga. 489

Court Abbreviation: Ga.