Shute v. Bills, 191 Mass. 433

Shute v. Bills

191 Mass. 433 | Mass. | 1906

Sheldon, J.

The plaintiff with her husband and mother occupied a one family dwelling house owned by the defendants and situated in Roxbury, the house being hired by her mother under an oral arrangement with the defendants’ agent. Early in the evening of Sunday, December 8, 1901, while she was leaving the house by the front door, she slipped upon the top step, fell and was injured. It had snowed shortly before, and the jury might have found that her fall was due to water having dripped during the day from a leak in a gutter overhead and frozen after sunset, leaving a thin skimming of ice upon the step. She contends that the defendants- are liable for her injuries, on the ground that this leak in the gutter constituted a concealed defect existing at the time when the defendants let the house, which they then knew or should have known, but of which they gave no information either to the plaintiff or to her mother, the tenant; and also on the ground that on its discovery after occupancy had begun the defendants’ agent was notified and requested to repair it, but neglected so to do, although bound to make such repairs by express contract and also by contract implied from a general custom, by which they were bound to keep the roof and gutter in repair; and also upon the ground that the roof and gutter did not pass by the contract of letting, *436but remained in the control of the defendants; and that having undertaken to repair, the defendants repaired the roof and gutter in a negligent manner.

1. Assuming without deciding that there was a leak in the gutter which might have been found to be a hidden defect, there was absolutely no evidence that its existence was known or ought to have been known before the letting to the defendants. But to sustain the action upon this ground it must appear that the defendants either knew or ought to have known of the existing danger. Martin v. Richards, 155 Mass. 381. Cutter v. Hamlen, 147 Mass. 471. Cowen v. Sunderland, 145 Mass. 363. Bowe v. Hunking, 135 Mass. 380. Minor v. Sharon, 112 Mass. 477. Even if the landlord should discover such a defect after the beginning of the tenancy, he is under no obligation to communicate it to the tenant. Bertie v. Flagg, 161 Mass. 504. The action cannot be maintained upon this ground.

2. There was evidence from Mrs. Tabor that after she had moved into the house, “ when the roof leaked and run down through into the chambers, from the gutter on the front steps,” she spoke to the defendants’ agent about that, and he sent a man who put some new shingles and she thought pieces of tin on the roof and cleaned out some of the gutter. The defendants’ agent also testified that he had had repairs made on the roof and the gutter, that the shingles of the roof had been repaired and the gutter" cleaned out and put in order. The plaintiff’s husband also testified that he saw a cleat which had been nailed to the thick outer edge of the gutter, but there was nothing to show whether this was or was not there before the beginning of the tenancy. The plaintiff’s mother also testified that the defendants’ agent promised when she hired the house to do “ any repairing needed, anything within reason.” The plaintiff also put in evidence against the objection and exception of the defendants that there was a known custom or usage in Boston by which when houses are entirely let without any written lease to a single tenant at will, the owner does the outside repairs, such as the roof and gutters and conductors. We cannot say that this evidence was incompetent, or that such a usage, if the jury found its existence to be proved, would be a bad one. See Pickering v. Weld, 159 Mass. 522; Hutchins v. Webster, 165 *437Mass. 439; Tower Co. v. Southern Pacific Co. 184 Mass. 472. Taking all the evidence together, we think that the jury might have found that the defendants had assumed the obligation to make repairs, at any rate such outside repairs as might be needed in the roof and gutters; that notice of the alleged leak in the gutter had been given to their agent, and that they, acting through their agent, undertook to repair this leak, but that in spite of the repairs which were made the leak continued as before. It is true that the plaintiff herself testified that no repairs were made upon the gutter; but the jury might have believed the testimony of the defendants’ agent upon this question. In that event, the defendants’ liability in this action would depend upon whether or not the repairs upon the gutter were made negligently. “ The general rule in this Commonwealth must be considered as settled that a tenant cannot recover against his landlord for personal injuries occasioned by the defective condition of the premises let, unless the landlord agrees to repair, makes the repairs, and is negligent in making them.” Lathrop, J. in Galvin v. Beals, 187 Mass. 250, 252, and cases there cited. If these facts are established, the plaintiff’s rights to maintain this action would be measured by those of her mother the tenant. Jordan v. Sullivan, 181 Mass. 348. O'Malley v. Twenty-Five Associates, 178 Mass. 555. Roche v. Sawyer, 176 Mass. 71.

The only evidence that these repairs, if made by the defendants’ agent, were made negligently was some testimony introduced by the plaintiff that after they had been completed the leak continued in the same manner and to the same extent as before. Doubtless the jury might have inferred from the testimony that no repairs were in fact made upon the gutter, but this was not the only possible inference. We are of opinion that if the jury found that such repairs were made, they then might find that the work done was ineffectual to stop the leak at all, and in view of the apparently simple character of what was needed to be done might have inferred from this that the work was negligently done; that the carpenter who had been sent to make repairs upon the roof and gutter did his work so negligently as not to stop the leak but to leave it as bad as before. They might have inferred from the fact that the leak was as bad as before that the work was improperly done. Accord*438ingly, for the reason that the jury might have found for the plaintiff upon this ground, if, as we think they might have done, they found that she herself was in the exercise of due care, the plaintiff’s exceptions must be sustained.

3. There was no evidence that the defendants retained control of the roof and gutter; but the plaintiff asked one witness whether in houses which are let as this one was “ there is any known and established usage or custom in Boston as to who shall retain control of the outside, yard, roof of the houses,” and saved an exception to the exclusion of this question. The parties have treated the question as if a formal offer had been made to prove a custom by which in such cases the landlord retains control of the outside, including roof and gutters. But we think that the evidence was plainly inadmissible. It contradicts both the agreement of the parties and the rule of the law. Such a custom would be a bad one. Boruszweski v. Middlesex Mutual Assur. Co. 186 Mass. 589. Menage v. Rosenthal, 175 Mass. 358. Benson v. Gray, 154 Mass. 391. Hedden v. Roberts, 134 Mass. 38. Commonwealth v. Cooper, 130 Mass. 285. Moreover, if it were shown that the defendants did retain control of the roof and gutter, yet they could not be held liable upon that ground alone in this action, for it does not appear but that the gutter remained in as good condition as when it was let. Moynihan v. Allyn, 162 Mass. 270. Quinn v. Perham, 151 Mass. 162.

. As there must be a new trial, we have passed upon all the questions raised by the exceptions which seem likely hereafter to be material. Tully v. Fitchburg Railroad, 134 Mass. 499, 505.

Exceptions sustained.