McCarthy v. York County Savings Bank , 74 Me. 315 ( 1883 )

Symonds, J.

In the consideration of this case we shall assume, without deciding, that the relation oflandlord and tenant between the plaintiff and the defendants has no effect to limit the right of action, that the restrictions upon the liability of lessors to lessees in such a case do not apply, that as to the water fixtures, their construction and condition, the defendants were subject towards the plaintiff to the ordinary responsibilities of a general owner of property in the possession of tenants to third persons alleging injury through its faulty or defective construction, ruinous condition, or by reason of a nuisance upon the premises at the date of the demise. The case will not bear a statement more strongly in favor of the plaintiff than this.

The occupancy by the tenant, Piste, of tlie upper room in which the bowl was set is one of the facts stated in the findings. There is nothing to indicate that his control pf the faucet which he negligently left open over night, thereby causing the damage alleged, was not as exclusive of any rightful exercise of authority by the landlord in regard to its use, as was his possession of any part of the leased premises. The bowl supplied with water was in the room -when Fiske began his tenancy under the defendants. He used it and paid the rent. He was tenant of the bank as to the bond and its appurtenances, as of the other parts of the room, and with such rights of possession and control as pertained to the tenancy. These fixtures were leased to him and as lessee he was the actual occupant of them. ,

They were not like roofs of buildings let to several tenants, nor like passageways, entries and staircases used in common by different lessees, in regard to which under some circumstances, it is held, the liability for failure to exercise reasonable care to keep them safe remains upon the landlord, because they do not pass from his control into the exclusive possession of either tenant. This distinction is a radical one and important to be observed, for it removes from further consideration a whole class of cases cited by the learned counsel for the plaintiff as the very basis of bis claim. The damages here resulted from the tenant’s use of a thing of which at the time, as tenant, lie had full control. It would not be according to the fact to base the landlord’s liability upon the ground that he retained the present possession of the faucet and bowl which arc alleged to have been of improper construction by reason of the insufficiency of the apertures in the howl to discharge the water delivered by the open faucet. These were let to the tenant as much as the floor of the room. The liability of the landlord, if it exists, must rest upon other grounds than that of occupancy, must lie further back than that.

That -water -was introduced into the building by the bank, that they caused the pipes to be laid and maintained and paid the water-rates, are not facts which tend to show their direct and present contol of faucets Avithin the rooms of their tenants. They may enter, if necessary, to change or repair the pipes, but while the room Avith its fixtures is in the possession of a tenant, it is he who sustains to third persons the liability of an occupant, as the landlord sustains that of owner.

It will be seen that Ave are not at present considering the measure of liability attaching to the bank for defects in the construction or condition of the Avater pipes generally throughout the building. It is not our purpose at this point to deny their liability in any respect, but only to limit it by excluding, as not pertinent to the facts of this case, one ground on which it is urged in argument, namely, the ground that the landlord, notwithstanding the tenancy, remained in the immediate possession of the water-fixtures in the room occupied by the tenant, Avhich Avere let to the tenant for his use. When such a defect as is here- alleged in the bowl set in the tenant’s room for his exclusNe use, and his negligence in using it, are together the causes of damage, it would be false to charge the landlord Avith the liability of an occupant as distinguished from that of an owner.

The question, then, reduced to. terms as favorable to the ■plaintiff as the case will permit is this, was the construction of the water-fixtures, in the possession of a tenant, such as to render the landlord liable to occupants below for damages resulting to their property from the tenant’s use of the 'fixtures, leaving the faucet open and letting the water overflow; such use of the fixtures being negligent in reference to the manner in. which they were constructed, and the damage Avhich followed not being the necessary or ordinary result of their use in the. Avay in Avhich they were designed to be used.

’ The fault with which the landlord is charged is stated- to be that "the apertures in the borvl for the outflow of the water were not of sufficient size to carry away the water coming from the faucet with the pressure which ordinarily existed in the night-time. There was no metal pan under the bowl for the purpose of catching the oArerfloxv and from which by means of a gutter the water could be carried to a safe place.”

Can the rulings which follow these findings of fact, that, having’ introduced water into the building it was the duty of the defendants to provide adequate means for the outflow of all that, the open faucet would send into the bowl under the usual heavy pressure at night; that the omission of this duty was negligence; that wdien this negligence concurred with that of the tenant in leaving the faucet open and thereby damage resulted to the plaintiff the defendants as matter of law were liable, be sustained? Is here a state of facts from which negligence and. liability are the legal conclusion ?

To state a stronger case, if the landlord of an upper tenement should cause a faucet of proper construction and capable of safe use with due care, but without any outflow at all, to be put in for the purpose only of drawing water, would it be a conclusion of law from that fact, without other evidence, that the landlord was negligent and liable for tbe damages resulting from his tenants carelessly leaving the faucet open ?

We do not now refer to the intervening act of the tenant as-precluding recovery against the landlord. I'Ve disregard, for the present, the distinction between remote cause and proximate-cause, and coniine ourselves strictly to tbe question whether in such case the law holds the landlord guilty of a wrong for putting his tenant in possession of such an appliance. The inquiry is, whether there is a rule of law which forbids the use of faucets intended to he closed and adjusted so as to be readily shut to prevent the escape of water; or which holds it an actionable negligence to maintain one in any instance without an outflow for all the water that the open faucet can deliver at full pressure, or a tort to put a tenant who is responsible for Ms own acts in tbe possession of such a fixture.

We think there is no such rule of law, and that legal liability for negligence does not result from the findings of fact in this-case.

Nothing unusual in the construction of the fixtures is shown. The testimony appears to have been that most of the faucets in. that part of the city would overflow the bowls, if left open during the heavy pressure at night. The tenant was familiar with this faucet from frequent use. There was nothing concealed from him, no danger which he could not readily anticipate and guard •against by such care as was proper to be exercised, by anybody ■who used it. It was not intended to be open, but closed, when mot in use. It is found that the tenant’s act in leaving it open •was a negligent one. There was no reason for him to suppose :it was safe to do that, nothing to induce him to believe that the •■ outflow would carry away all the water that the open faucet would deliver at night. No harm would result to anybody from 'the use of it with reasonable care in the manner 'in which the tenant knew it was designed to be used. It was under his control. When damage resulted from the tenant’s negligent use of ¡such an appliance as that, what fault was there except in the 'tenant himself? Simonton v. Loring, 68 Maine, 164.

The liability of the landlord does not follow from the fact that the building does not-contain the latest and most improved ¡system of water-pipes. He does not insure against the negligence ■of his tenants, nor is he bound to construct his building so as to :reduce the possibilities of damage from such negligence to an •absolute minimum.

In Fish v. Dodge, 4 Denio, 317, it is said, "one who demises .'his property for the purpose of having it used in such a way as' ¡must prove offensive to others may himself be treated as the ¡author of the mischief.” But when the letting is for a lawful ■purpose which can create a nuisance only under special circumstances, "he cannot be justly charged with the wrong which was actually committed by others who were not in his employment, ■unless he knew or had reason to believe that he was letting the property for a use which must prove injurious to the plaintiff.”

In the opinion of the court in Pickard v. Collins, 23 Barb. 460, it is said, " the instruction that if the barn was built to be used in a certain way and was let to a tenant who in fact used it in that way and such use proved noxious or injurious to the plaintiff, the defendant is responsible for the injdry, I think required some modification. If the use in that way would necessarily, under ordinary circumstances, be a nuisance, the proposition is correct.”

" While the lessor of premises who leases them when they are already a nuisance, and receives rent, is liable for damages to a stranger happening therefrom, whether the owner be in possession or not, a lessor of premises not per se a nuisance, but which become so only by the manner in which they are used by the lessee, is not liable therefor.” Ditchett v. Railroad Company, 68 N. Y. 427.

In Gandy v. Jubber, 5 B. and S. 78, it is saidby CnoMrTON J., "to bring liability home to the owner, the nuisance must be one which is in its very essence and nature a nuisance at the time of the letting, and not merely something which is capable of being thereafter rendered a nuisance by the tenant ;’’byBLACKivuRN J., "it must be shown that there has been a demise of land, with the nuisance existing upon it; and the nuisance must be, if I may so term it, a normal one; not such for instance as a cellar with a flap which may be or not a nuisance, according as it is carefully closed or improperly left open.”

The result of authority is stated in Taylor’s Land, and Ten. § 175, to be that to render the landlord liable, "the nuisance must be one that necessarily arises from the tenant’s ordinary use of the premises for the purposes for which they were let, and not to be avoided by reasonable care on the tenant’s part.” See, also, § 175 a. n. 6, where Marshall v. Cohen, 44 Ga. 489, one of the principal cases cited for the plaintiff, is said to have turned upon a requirement of statute. Rich v. Basterfield, 4 Man. Gran. and Scott, 783, 804; Carstairs v. Taylor, L. R. 6 Exch. 217; Ross v. Fedden, L. R. 7 Q. B. C. 661; Lowell v. Spaulding, 4 Cush. 277; Saltonstall v. Banker, 8 Gray, 197; Murray v. Richards, 1 Allen, 414; Mellen v. Morrill, 126 Mass. 545; Stewart v. Putnam, 127 Mass. 403.

The authorities upon this point are numerous and hare been elaborately cited in the arguments. Under them, we think it must be held that the statement of this case does not sustain the ruling that the defendants are liable as matter of law, and does not contain the evidence upon which negligence on their part could legally be found as matter of fact.

Exceptions sustained.

Appleton, C. J., Walton, Barrows, Danforth and Peters,, JJ., concurred.