Opinion
No. 3119.
Decided January 2, 1940.
The liability of a landlord to his tenant's invitee for injuries received from a defective condition of the premises is governed by the same rules and subject to the same limitations as those between a landlord and his tenant.
In such case where there is no evidence from which it might be inferred that either the repairs made by the landlord or his promises to repair were motivated by his recognition of a duty to repair rather than by a desire to preserve his property there is no evidence of his control over the defective premises.
TWO ACTIONS ON THE CASE, for negligently causing the death of the plaintiff's intestate. A trial by jury resulted in verdicts for the plaintiff.
The decedent, Alice Lavoie, was killed when the decayed railing of an outside platform on the rear of the second-floor tenement in which she lived gave way and precipitated her to the ground below. The building in which this tenement was located formerly belonged to one George Goodwin who several years before the accident died intestate leaving a widow, the defendant Eva, and one son, the defendant Leon. At the time of the decedent's injury and death Eva was insane and confined in the State Hospital and Leon was under the conservatorship of the defendant Barnard. After the accident, but before these actions were instituted, Leon died intestate and the defendant Barnard was appointed to administer his estate. During the same interval Barnard was appointed guardian of Eva. Her dower rights have never been set off.
The tenement in which Alice lived at the time of her fall had formerly been occupied by her sister, the defendant Eva, but upon the committal of the latter to the State Hospital, Alice and another sister Julia moved into it. The evidence is conflicting as to whether the defendant Barnard knew of their occupancy at the time when they moved in or did not discover it until some months later. They never paid any rent, but Julia assisted in the management of the property by collecting rents, finding tenants and supervising repairs. Alice was employed in a local factory and every week gave all her wages to Julia who ran the household and supervised all of their expenditures of every sort.
The defendants excepted to the denial of their motions for nonsuits and directed verdicts, to the admission and exclusion of evidence, to portions of the argument on behalf of the plaintiff and to the charge. They also excepted to the denial of their motion to set the verdicts aside as against the law, the evidence and the weight of the evidence. Decision on their motions to set the verdicts aside as excessive was reserved pending consideration of their other exceptions by this court.
Such further facts as are material are stated in the opinion.
Transferred by Burque, C.J.
McLane, Davis Carleton (Mr. Carleton orally), for the plaintiff.
Wyman, Starr, Booth, Wadleigh Langdell (Mr. Langdell orally), for the defendants.
It is unnecessary to consider whether Alice was herself a tenant or whether Julia was the tenant and Alice occupied the tenement as a guest, boarder or member of her sister's family. The reason for this is that even though Alice was not the actual tenant she was at least occupying with the tenant's permission, and as such her "rights in regard to injuries received from defects in the premises are governed by the same rules and are subject to the same limitations as the tenant's." Towne v. Thompson, 68 N.H. 317. The fundamental question presented is one of duty. It is whether or not the landlord was under any obligation to use due care to see that the platform and its railing was reasonably safe for use by either the tenant or those who might enter upon it with the tenant's permission.
The defendants take the position that the structure from which the decedent fell was a part of the demised premises over which the landlord had not retained control and that in consequence, there being no evidence of warranty, fraud or deceit, he was under no duty to keep it in reasonable repair. Scott v. Simons, 54 N.H. 426; Towne v. Thompson, 68 N.H. 317; Flanders v. Bank, ante 285. The plaintiff, on the other hand, in spite of the lack of evidence of any agreement respecting control of the platform made between either Julia or Alice and their landlord at the time when their occupancy began or at any subsequent time, and in spite of the lack of evidence that the platform was used in common with other tenants in the building, contends that there is evidence in the case from which it could be found that the landlord had retained control over the platform and hence, under the rule of Gobrecht v. Beckwith, 82 N.H. 415 and Hunkins v. Company, 86 N.H. 356, owed the decedent a duty to use due care to keep it in repair.
The evidence principally relied upon by the plaintiff is that concerning the defendant Barnard's conduct with respect to repairs. It appears that after the decedent's fall this defendant, at the insistence of his insurance carrier, made at his own expense extensive repairs to the platform. The equivocal nature of evidence of a single instance of repairs made by a landlord on the issue of his retained control of the part of the premises repaired was fully discussed in the recent case of Flanders v. Bank, ante 285, and it would serve no useful purpose to recapitulate it here. The further evidence that the defendant Barnard, some three months before the accident to Alice, promised Julia that he would make repairs to the platform as soon as he had the money to do so and that he authorized her to obtain estimates of the cost thereof, is, upon principle, of no greater value to show control than evidence of repairs themselves and, upon authority, provides no basis for an action of this sort. Dustin v. Curtis, 74 N.H. 266; Petroski v. Mulvanity, 78 N.H. 252. The evidence that Barnard had the final and unqualified decision on the question of what outside repairs should be made is also without effect upon the issue. The reason for this is that decisions of this nature are normally retained by the landlord as an incident to his ultimate ownership, and point no more clearly toward a permanently retained control than toward a right reserved by the landlord to pass upon how his property shall be maintained. It is fully as ambiguous as evidence of repairs made or promised.
There being no evidence in the record from which it might be inferred that either the repairs made by the landlord or his promise to repair were motivated by a recognition on his part of a duty owed to the tenant in that respect rather than by a desire to preserve his investment, (in fact the only evidence is that he made the repairs only to improve the rentability of the property), it follows that there is no evidence of a retention of control by the landlord over the platform and that the defendants' motions for nonsuits should have been granted.
The result reached on this question of duty renders it unnecessary to consider the defendant's contention that these actions should have been brought against Barnard individually and not in his representative capacity and also renders it unnecessary to consider any of their other exceptions.
Judgments for the defendants.
All concurred.