Deutsch v. Max

Opinion by Mr. Justice Maxey, This is an action by a domestic servant against the landlord of her employer, for damages arising from injuries she received by reason of a defect in premises leased by the landlord to the employer. On February 1, 1929, Jacob Max (now deceased) owned a three-story frame building in Allentown. On that day he leased this property to Joseph Rosenberg for three years to be used as a grocery store and dwelling. Possession of the de *452 mised premises was taken immediately. Facing north Second Street there was a second story front porch with wooden balustrades around it. On July 13, 1931, the tenant employed plaintiff as a domestic servant. The latter had come to this country from Germany about a year previously and had been employed by other families before entering Rosenberg’s employment. On the afternoon of August 31, 1931, while engaged in cleaning the second floor, she walked out upon the front porch and there while “shaking a small carpet” “the balustrade went out” and she fell upon the cement sidewalk twelve to fourteen feet below, inflicting upon her very serious and permanent injuries. The balustrades were defective, the joists and uprights were decayed, and the nails supporting the balustrades attached to the uprights were rusted off. A witness to this accident testified that “she [the plaintiff] came down on her hands and turned over.” He found her “bleeding from the mouth, all bloody and badly hurt.” He described the balustrade as follows: “When it struck the pavement it went into kindling wood, and flew apart, there was not a piece together it was so rotten. The nails were rotted off.” The negligence charged was “that although said defective, decayed and rotten condition of said porches attached to said premises was well known to the said Jacob Max, now deceased [the landlord], prior to and at the time of said letting, he failed, neglected and refused to repair the same, but allowed the same to remain in said defective, decayed and dangerous condition.” The above witness testified further that he had been a carpenter foreman for many years, that in the year 1930 (a year before the accident) he lived alongside the premises in question, and that his attention was called to the defective condition of this porch in 1930, by one of these defendants, who asked him to go up and take measurements “and find out what it would cost to fix it up.” He gave them an estimate but nothing was done about it. He had found the porch in a defective condition and “the rails on the front balustrade were ready *453 to come apart,” and one of the defendants stood near him on a ladder while he (the witness) was making this examination. The witness also discussed the condition of this porch with another one of the defendants before the accident. He testified that his examination of the balustrade and the uprights convinced him that this defective condition had existed “for fully five years” and that-this rotten condition of the porch “could have been seen by anyone making a reasonable inspection of it.” Frank Minner, building inspector for the City of Allentown, rendered an expert opinion that the “rotted condition of the balustrade and the uprights existed for not less than six, seven, or eight years.” Another witness, also a carpenter, gave similar testimony. After trial the jury rendered a verdict in favor of plaintiff in the sum of $7,000. Defendants entered rules for judgment n. o. v. and for a new trial. The court sustained the motion for judgment n. o. v., basing its decision upon the proposition that this domestic servant was “so far identified with the tenant” that she “could have no right of recovery against the landlord.” This case is ruled by the principle that where a landlord lets premises in a, ruinous condition or in a condition amounting to a nuisance, the landlord is liable for injuries resulting therefrom. This principle has been recognized in numerous eases in this and other'jurisdictions. See Harte v. Jones, 287 Pa. 37, 134 A. 467; Cunningham v. Rogers, 225 Pa. 132, 73 A. 1094, and Mitchell v. Sinn, Inc., 308 Pa. 1, 161 A. 538. In the latter case, Mr. Justice Kephart, speaking for the court, said: “The liability of a landlord to third persons, arises only when he has (1) contracted to repair, or (2) let the premises in a ruinous condition [italics supplied], or (3) expressly licensed the tenant to do acts amounting to a nuisance.” In Knauss v. Brua, 107 Pa. 85, this court said: . .To make the lessor so liable the effect must be one that arises necessarily from a continuance of the use of the property as it was when the tenant took possession of it [italics sup *454 plied].” See also Fow v. Roberts, 108 Pa. 489. In Edwards v. N. Y. & H. R. R. Co., 98 N. Y. Rep. 245, the Court of Appeals of New York, in an opinion by Earl, J., gave expression to the well-recognized principle that the liability of a landlord in a case of this character is not based upon the “contractual obligation but must rest entirely upon its delictum. . . . If he [a landlord] demises premises knowing that they are dangerous and unfit for the use for which they are hired, and fails to disclose their condition, he is guilty of negligence which will in many cases impose responsibility upon him.” In Nelson v. Liverpool Brewery Co., 46 L. J. Com. P. 675, 2 C. P. D. 311, 25 Week. Rep. 877, this same principle was expressed, the court there stating that where a landlord lets premises “in a ruinous condition” it is “a misfeasance” and the landlord is liable for resulting injuries. In that case plaintiff wás a barman, in the employ of the tenant, and while on the premises was knocked down by a chimney-pot falling upon him. After stating the above quoted principle, the court set aside the verdict for plaintiff because “it is admitted that the premises were not out of repair when Farragher [plaintiff’s employer] became the tenant.” In an article on “Tort Liability of a Landlord,” 26 Mich. Law Rev. 260, there is expressed this principle (page 268) : “The actual holdings in the cases lead to this result: The landlord, as a rule, need not, before leasing the premises, look for defects therein. But if he has knowledge of facts that would lead a reasonable man to suspect that defects actually exist, he should disclose such facts to the prospective tenant.” In a footnote appears the following: “So the proper statement of the rule is that the landlord will not be liable for concealed defects or dangerous conditions existing at the time of the demise unless he knew of the defects or had knowledge of facts from which he ought to have known or will be presumed to have known of them. [Page 399:] A total failure to act when inaction creates danger may very well *455 constitute negligence.” In Tiffany on Landlord and Tenant, volume 1, page 563, it is stated: “The principle that one who delivers an article which he knows to he dangerous to another ignorant of its qualities, without notice of its nature or qualities, is liable for any injury reasonably likely to result, and which does result, has been applied to the letting of tenements. [Page 564:] That one who induces another to occupy land'belonging to him owes to the latter a duty to inform him of facts which render such occupancy dangerous, and that, in failing to do so, he is guilty of negligence, would seem to admit of little question. This duty may well be assimilated as in the language above quoted, to that of one who sells a dangerous article to one ignorant of its character, he being bound to warn the purchaser of the danger if he knows thereof; and it evidently also bears a close resemblance to the obligation imposed upon the proprietor of land, as regards persons invited by him thereon, for purposes of mutual advantage, to take reasonable precautions to make the premises safe, or to warn such persons of dangerous conditions. It would be singular if, while one inviting another, for purposes mutually beneficial, to come upon land for a brief period, owes a duty to protect him from dangers of which the former knows or should know, or to notify him of such dangers, he were to owe no such duty to one whom he invites to come upon the land for a protracted period, whether a lessee, lodger, servant or in any other capacity.” In Cowen v. Sunderland, 145 Mass. 363, 14 N. E. 117, the Supreme Judicial Court of Massachusetts said: “There was evidence that she [tenant-plaintiff] did not know of the existence or location of the cesspool; that it was in the yard she had hired, and was entitled to use; that it was covered with from four to six inches of dirt, on which grass and weeds were growing ; that it presented the same appearance as the rest of the yard; that it had never been pointed out to her, and that it was where she passed over it in her use of the yard; that the boards which covered it, and on which the earth *456 rested, were rotten and decayed; and that, in stepping upon this covering of the cesspool, she was thrown into it and injured. There was further evidence that this cover had been repaired with old boards some time before, by the defendant’s direction, and that defendant was present when this was done. From the description of witnesses of these repairs to the covering of the cesspool, the jury might fairly have inferred that it was left in an unsafe state, and known to be so. Upon these facts, the learned judge erred in withdrawing the case from the jury. It should have been submitted, with proper instructions, to determine whether the defendant knew the defective covering of the cesspool, and the danger therefrom, had negligently omitted to inform the plaintiff, and whether the plaintiff herself, making careful examination, had been injured thereby by reason of a want of proper examination.” The court said further in that case: “Obviously, there may be many concealed defects and dangers about a house, which careful examination will not discover. If these are known to the lessor, it is for him to reveal them. Traps or contrivances may exist, by means of which the most careful occupant might be injured. ‘Such traps or contrivances,’ says Mr. Justice Field, ‘are not merely a want of repair; they are in a sense active agencies of mischief, which no tenant would expect to find, even in a decayed and ruinous tenement’: Bowe v. Hunking, 135 Mass. 380.” In Kirchner v. Smith, 207 Pa. 431, 56 A. 947, the tenant had leased certain premises for the term of one year, and then took a roomer into the house. The latter returned unexpectedly one night to her office and room and found the door locked. She undertook to tap upon a window, which she could reach only by stepping off the end of the doorstep upon the grating. She put her foot down there, but instead of finding support, it went through an opening. This court held in that case that she clearly had a right of action against the landlord. In Folkman v. Lauer, 244 Pa. 605, 607, 91 A. 218, this court said: *457 “Whatever may be the rights or liabilities of the parties to the lease between themselves, the responsibility of the landlord for a dangerous condition of the demised premises at the time the tenants took possession is not shifted by the undertaking of the tenants to make repairs as far as the rights of a stranger to the contract are concerned who was rightfully on the premises and was injured because of the failure to remove such dangerous condition.” We stated in Cunningham v. Rogers (supra), 225 Pa. 132, 73 A. 1094: “The general principle is undisputed that when a landlord lets premises in a dangerous condition, he is liable for the consequences which may result from the condition he permitted to exist.” See also Garson v. Godley, 26 Pa. 111; Wunder v. McLean, 134 Pa. 334, 19 A. 749; McLaughlin v. Kelly, 230 Pa. 251, 79 A. 552, and 16 R. C. L., section 594, page 1076. To impose liability on a landlord for injuries resulting to any person by reason of the former’s leasing a building which he knew was in a ruinous condition, it is not necessary that the entire building leased be in such condition. The ruinous condition menacing the lives and limbs of those lawfully on the premises and which will support a tort action may be a condition affecting either the whole or any part of the building leased. The balustrade of a second story porch is an important part of any premises occupied by a tenant, his family and his servants. It has a function vital to the safety of the occupiers of the premises. The testimony in this case is convincing that the ruinous condition of this second story porch and its uprights existed at the time the building was rented to plaintiff’s employer and for several years prior thereto. This condition was due to neglect for which defendants must accept responsibility. This negligence was the proximate cause of plaintiff’s injury. Her right to recover is clear. The judgment of the court below is reversed and judgment is herein entered for the plaintiff on the verdict.