Mansell v. Hands

Braley, J. While it is clear that the testator never had been the lessor, but acted only in making repairs and in collection of rent as agent of his wife, who owned and let the premises, and the plaintiff fails to show any cause of action in the first action, no question as to the absence of common liability is raised, and we shall accordingly refer to Anna C. Hands as the defendant. The plaintiff is a tenant at will, and the jury would have been warranted in finding that, at the date of rental, the heating apparatus consisted of a hot air furnace, inside of which was a hot water coil connecting with two radiators, one in the kitchen and one in the -chamber above the dining room in the back part of the house, and that, six months after her occupancy began and nearly twenty-two years after the system was installed, the radiator in the chamber exploded causing personal injuries for which she seeks damages. It also could have been found on the evidence of the plaintiff’s expert, that the system was defective because no expansion tank had been provided, nor any “release” nor “expansion” valve, which would have been the equivalent of a tank. But, notwithstanding these omissions, it was his opinion, which the jury could have followed, that the supply pipe connecting the coil with the street water main would have been sufficient to take care of the expansion if a check valve had not .been improperly placed in the pipe, the closing of which created an excessive pressure causing the explosion. The exact location of the check valve however •does not appear, nor is there any direct evidence whether it was necessary in operating the coil to open the valve for the admission of the required supply of water. It is shown that, when the premises were let, the apparatus, which was looked over by the plaintiff appeared to be in good working order, and that, until the explosion, she took care of the furnace. But the question of her due care or assumption of risk is immaterial on the present record. “The rule of caveat emptor •applies, and it is for the lessee to make the examination necessary [255] to determine whether the premises he hires are safe, and adapted to the purposes for which they are hired,” and there is no implied warranty in the letting of an unfurnished house that it is reasonably safe for use. Cowen v. Sunderland, 145 Mass. 363. The plaintiff’s only remedy is in tort, for reasons fully stated in Stevens v. Pierce, 151 Mass. 207, 209, where preceding cases are cited, and Martin v. Richards, 155 Mass. 281, where they are exhaustively reviewed. “If there is a concealed defect that renders the premises dangerous which the tenant cannot discover by the exercise of reasonable diligence, of which the landlord has or ought to have knowledge, it is the landlord’s duty to disclose it, and he is liable for an injury which results from his concealment of it.” Booth v. Merriam, 155 Mass. 521, 522. Cutter v. Hamlen, 147 Mass. 471, 475. But, even if it is assumed that the jury would have been warranted in finding that when the plaintiff examined the premises the check valve was not plainly visible and could have been located only after investigation by a competent mechanician, she failed to' offer any evidence which would justify a finding that the defendant knew, or had knowledge of any circumstances from which such a result could be inferred, that the hot water system had been so defectively installed that its use might cause an explosion of the radiators. If the defendant did not know of any concealed defect or conditions which might make the use of the premises dangerous, no liability has been shown, and the verdicts were ordered rightly.. O’Malley v. Twenty-five Associates, 178 Mass. 555, 558. The exceptions therefore in each case must be overruled. So ordered*