Whitmore v. Orono Pulp & Paper Co.

Emery, J. The defendant company, the Orono Pulp and Paper Company, constructed and for a few years up to October 1, 1892, operated a pulp mill in Orono. On that day it leased its mill and plant to another and distinct corporation, the .Bangor Pulp and Paper Company, for twenty-five years. This latter company, the lessee, took possession of the leased property on the same day and for some little time thereafter operated it as a pulp mill on its own account. By the terms of the lease the Bangor Company, the lessee, was to have the exclusive possession of the property and was to keep it in substantial repair, the lessor reserving the usual right to enter upon and view the premises at times convenient to the lessee. The lessor made no stipulation as to the condition of the property. The plaintiff’s intestate, Austin J. Whitmore, had entered into the employ of the lessee, the Bangor company, and was in its employ, upon the premises thus leased and operated by it, on the 11th day of October, 1892. On that day one of the digesters, a large cylinder of deoxydized bronze and an essential part of the machinery of the mill, exploded while Mr. Whitmore was at work near it in the line of his duty. He was so severely injured by the explosion that he died a few weeks afterward. The explosion resulted from the inability of the digester to resist the usual pressure of steam injected into it in the course of the business of the mill. For this injury the plaintiff, as administratrix, first brought an — 303 — action against the Bangor company, the lessee operating the mill and plant, and her husband’s employer, counting upon the negligence of that company, and recovered judgment upon the ground that that company had not exercised due care in examining into and ascertaining the real condition of the digester which in fact was too weak to withstand the steam pressure used. By reason of the insolvency of that company the plaintiff has not been able to collect any part of that judgment. The plaintiff thereupon brought this action against the lessor of the mill and plant, the Orono Pulp and Paper Company, counting upon its neglect of its duty in the matter of the faulty digester. The defendant company did not construct the digester, but purchased it from a reputable manufacturer of digesters. In selecting, purchasing and setting up this digester, it is not questioned that the defendant company exercised due care. At the first it was sufficiently strong. It was weakened after a time by the peculiar and continued action of the necessary chemicals upon the particular metal of which it was composed. This action was wholly confined to the interior of the closed cylinder, and was invisible from the outside. Granting, that at the time of the execution of the lease and the change of the possession and control of the premises from the lessor to the lessee, the digester was then in fact too weak for its purpose, it does' not appear from the evidence that any officer or agent of the lessor company was actually aware of that condition of the digester, or that knowledge of it could have been obtained, except by actual examination of the interior or by inference from sufficient technical learning as to the peculiar action of the particular chemicals upon the particular metal. The outward visible indications all were that the digester was as strong as ever. The defendant company did not make the necessary examination, before or at the time of leasing, and did not possess the requisite technical learning to make the correct inference without examination ; but there is no suggestion of fraud or concealment in the matter. It may be that this omission and ignorance were a breach of a duty owed by the defendant company to its own employees or — 304 — servants, but that proposition alone will not sustain tbe plaintiff’s action. A person may owe a duty to one individual, or class, wbicb he does not owe to another. The duty may depend wholly upon the relation between the parties. The plaintiff must, therefore, maintain the proposition that the defendant owed to the servants of its lessee the duty of making the requisite examination, or of possessing the requisite technical learning, and communicating the results before turning the plant over to the lessee. Whether the law of this state supports that proposition is the question presented. It should be noted, at the outset, that the defendant company is not a public corporation, engaged in a public business, enjoying public franchises and owing special duties in consequence thereof. It is a private corporation, transacting a purely private business, and dealing in this instance with another private party. Hence, the rules and principles applied to owners of railroads, wharves, elevators, public halls, etc., do not necessarily govern this case. Again, the plaintiff’s intestate was not upon his own premises, nor upon any public road or place at the time of the explosion, but was voluntarily upon the leased premises under a contract with the lessee only. Hence, the doctrines of the law of liability for nuisances to strangers or the public are not necessarily applicable. It should be further noted that the lessee engaged to make repairs,— that the lessee had as much ability and opportunity as the lessor to ascertain and guard against the actual condition of the digester before accepting and using it, and subjecting the plaintiff’s intestate to the consequent danger. Indeed, the plaintiff recovered her judgment against the lessee for this same injury upon that very ground, that the lessee by reasonable effort could have done, and yet did not. It is not questioned that under such circumstances the lessor owes no more or other duty to the lessee’s servants or assigns, than he does to the lessee himself. If his duty or freedom from duty to the lessee is made plain, his duty or freedom from duty to the lessee’s servant is equally plain. The discussion, therefore, may be confined to the duty of the lessor to the lessee. — 305 — Under suck circumstances as have been disclosed and stated in this case, does the owner of property, unaffected by any public use, owe to his prospective lessee the duty to actively exert ordinary care at the time of the lease to find out and 'apprise him of unknown defects which the lessee can equally well find out for himself? The development of the law has not yet progressed so far in this State. Here the common law rule of caveat emptor is still in force, and is applied to the lease as well as to the sale of property. It was early said in Hill v. Woodman, 14 Maine, 38, (42, 43) that, in the absence of express stipulations as to the condition of the premises, the lessee took them for better or worse, at least when he had sufficient means for ascertaining their condition. In Libbey v. Tolford, 48 Maine, 316, it was explicitly declared to be the law that there is no implied obligation upon the lessor,—to see that a leased building is safe, well built or fit for any particular use,—that a leased house is reasonably fit for habitation,—or that leased land is fit for the purpose for which it is taken. In Gregor v. Cady, 82 Maine, 131, the owner was held bound to effectually repair where he assumed and began to repair, but it was declared (p. 136) he was under no obligation to repair, and that “the tenant, on the principle of caveat emptor and in the absence of any fraud upon the part of the landlord, takes them [the leased premises] in the actual condition in which he finds them for better and for worse.” In McKenzie v. Cheetham,, 83 Maine, 543, the defendant had leased the second story of a dwelling-house with a defective landing for a stairway which was' the only means of ingress and egress for the second story. The plaintiff had made a social call upon the tenant, and on leaving fell through the defective landing. The court held that the defendant owed no duty to the tenant or to his caller, the plaintiff, as to the defective landing upon the premises, even though the landing was essential to the reasonable use of the leased tenement. It was again iterated (pp. 548, 549) that “ the law, in the absence of any fraud or concealment on the part of the lessor, leaves the lessee to the operation of the maxim caveat emptor and he takes the premises as he finds — 306 — them for better or worse”; and many authorities were cited. The court also necessarily decided that the lessor owed to no one on the premises under the lessee any more duty than he owed to the lessee himself. So stands the law in this state to-day, well known and hitherto acted upon. Any desired change or extension of it should be asked of the legislature and not of the court. The case of Nugent v. B. C. & M. R. R., 80 Maine, 62, rightly understood, is no departure from the former decisions of this court. The defendant railroad company, the owner of the railroad, had not leased it to the Portland and Ogdensburg R. R. Company, the plaintiff’s employer, nor had it in any way turned over the whole plant to the latter company. It had simply permitted the Portland and Ogdensburg Company to run through freight trains over a part of its tracks. It retained the possession and control of its tracks, station houses, platforms, etc. The plaintiff, a brakeman in the employ of the Portland and Ogdensburg Co., was injured in the line of his duty, through the defective construction of a station awning on the defendant’s road. It was conceded that upon the above facts, the defendant company having control of the station house, awning, platform, etc., and inviting the plaintiff to pass and repass in the line of his duty as such brakeman, owed him the duty of so constructing and maintaining th'e awning as not to be dangerous to him. But after this arrangement with the plaintiff’s employer, and while it was in force, and before the injury, the defendant company leased its entire road including stations to the Boston and Lowell Railroad Company, which latter company completely took over and operated the entire road, agreeing to assume all liability for injuries, etc. The plaintiff was injured while the lessee was in possession under that lease. It was contended by the defendant company that such lease and transfer of possession freed it from what otherwise would have been its duty and liability to the plaintiff. The court held that they did not. That was the point of the decision. The decision in the Nugent case, supra, is really based upon the proposition that the owner of a railroad, or other property affected — 307 — by a public use, with wbicb tbe public have business relations, owes a duty to all persons who lawfully come upon the property, to make and keep the property safe for all such persons,—and cannot avoid that duty by merely leasing the property and retaining rents. That proposition as before stated does not include this case of property of a purely private nature, with which the public has no business relations. It is true, as urged by the plaintiff, that the learned justice writing the opinion in the Nugent case also adduced as an additional support for the judgment the responsibility of a lessor in some cases for the condition of the demised premises, but this was not necessary for the decision and was not intended to be applied to a case like this. The same justice afterward wrote the opinion in McKenzie v. Cheetham, supra, re-affirming the doctrine of the earlier cases. The plaintiff, however, advances another and distinct proposition,—that the weak digester was a nuisance, allowed to become and remain so by the owner prior to and at the time of the lease, and hence that the owner must answer as for a nuisance. This proposition cannot be assented to. Some things may be nuisances per se under all circumstances and as to all persons;—other things are nuisances only under certain circumstances and as to certain persons. A slaughter-house may be a nuisance as to the owner’s neighbors but none at all as to his employees in the business. What may be a nuisance as to others may not be a nuisance as to one’s lessee, and here we are dealing with lessee and lessor. To constitute any particular thing a legal nuisance per se, (apart from statute nuisances) as between lessor and lessee and the servants of the lessee, the thing itself must work some unlawful peril to héalth or safety of person or property,—as defective cesspools, imperfect sewers and drains, walls and chimneys liable to fall, unguarded excavations, etc. A fixed, inert mass of metal upon a solid foundation upon one’s own land like this digester, was not in itself dangerous to anyone. The employees of the lessee could have worked around and near it without any danger from it, to person or health, so long as it was let alone. The danger arose — 308 — only when the lessee, the employer, began to make use of the digester without first ascertaining its tensile strength and gauging the applied force accordingly. Indeed, the plaintiff has once alleged, and recovered judgment upon proof, that the misconduct of the lessee caused the peril and injury complained of. This is inconsistent with her present contention that the digester was a nuisance per se as to her intestate, the lessee’s employee. The question of what is a nuisance upon leased premises was considered at some length with citation of authorities in McCarthy v. York County Savings Bank, 74 Maine, 315. It was there held that a discharge pipe insufficient to vent the water flowing into a bowl from a faucet, so that the water overflowed the bowl and caused damage, was not a nuisance as to the tenant. See also Brightman v. Bristol, 65 Maine, 423; Burbank v. Bethel Steam Mill Company, 75 Maine, 373 ; and Leavitt v. Bangor & Aroostook R. R. Co., 89 Maine, 509, though those were not cases between lessor and lessee. We have hitherto confined our citation of authorities to the decisions in this state, thinking they sufficiently showed our law to be against the plaintiff’s contentions. She has, however, cited cases from other states, of which one or two notably support her contentions. Stenberg v. Wilcox, 96 Tenn. 163, (34 L. R. A. 615) and Hines v. Wilcox, 96 Tenn. 148, (34 L. R. A. 824.) As to these cases, the learned editor of the L. R. A. series says they are a new departure in the law,—that they transfer to the landlord a duty which has heretofore rested upon the tenant, the duty of taking active care to find out unknown and unsuspected defects. As we have said above, we think it is for the legislature not the court to make this transfer of duty if thought desirable. On the other hand many courts in late decisions adhere to the long established rule of caveat emptor. In Jaffe v. Harteau, 56 N. Y. 398, a boiler defective in construction exploded. In Edwards v. N. Y. & H. R. R. R. Co., 98 N. Y. 249, a gallery defective in construction fell. In Doyle v. Union Pacific Ry. Co., 147 U. S. 414, a house was too weak structurally to resist snow glides known to the lessor to be recurrent and dangerous. In — 309 — Tuttle v. Gilbert Mfg. Co., 145 Mass. 169, a floor defective in construction fell. In Bowe v. Hunking, 135 Mass. 380, a stair-tread had been sawed. The lessor knew of the sawing but supposed the tread sufficient. In Kern v. Myll, 94 Mich. 477, a well had been used as a cess-pool and thus had become offensive. In Burdick v. Cheadle, 26 Ohio St. 393, (20 Am. Rep. 767,) fixtures put up by the lessor were structurally defective and fell. In Wilson v. Treadwell, 81 Cal. 58, a stairway was defective. In Texas & Pacific R. R. Co. v. Mangum, 68 Texas, 342, a defective platform fell. In Fellows v. Gishubler, 82 Wis. 639, an unsafe awning fell upon a guest. In Mc Connell v. Lemley, 94 La. Ann. (34 L. R. A. 609,) a defective gallery fell upon a guest. In Johnson v. Tacoma Cedar Lumber Co., 3 Wash. 722, defective machinery in a mill gave way. In all these cases, it appearing that the lessor was unaware of the defects, it was held that he was not liable to the lessee or his servants for the injury occasioned by them. Motion and exceptions sustained.