McKenzie v. Cheetham , 83 Me. 543 ( 1891 )

Virgin, J.

Action on the case by a guest of the sole tenant ■of a second-story tenement, occupied as a dwelling-house, against the landlord to recover damages for a personal injury caused by the defective landing of a stairway which was the only means of ingress and egress to and from the tenement.

The tenancy commenced in October, 1888. On the evening of January, 10, following, the plaintiff made a social call on the tenant; and when in the act of leaving, he reached the landing it fell and caused the injury for which damages are sought.

The foundation of the action is alleged negligence on the part of the defendant; that he did or omitted to do an act in violation of a legal duty or obligation which he owed the plaintiff and consequent damages.

In the purchase of real as well as of personal estate, parties make their own contracts which the law construes and enforces. When one is negotiating for the lease of a dwelling-house the same as when bargaining for a personal chattel, it is his privilege to inspect and ascertain for himself its actual quality and conditions ; and the parties make such express agreements relating thereto as they think fit. If the lessee, instead of exacting from the lessor any warranty of its present or future state of repair, elects to rely upon his own judgment, 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 them for better or worse. Hill v. Woodman, 14 Maine, 38, 42; Gregor v. Cady, 82 Maine, 131; Keates v. Cadogan, 10 C. B. (70 E. C. L.) 591. For the mere letting, without additional stipulations by the lessor, simply implies that he holds the title and that the lessee shall quietly enjoy the use and occupation during his tenancy; and not that the premises are or shall be in any particular condition or state or repair, or that they are suitable for the purpose for which they were let. Arden v. Pullen, 10 M. & W. 321; Sutton v. Temple, 12 M. & W. 52; Hart v. Windsor, 12 M. & W. 68, 85 ; Libbey v. Tolford, 48 Maine, 316; Gregor v. Cady, supra; Foster v. Peyser, 9 Cush. 242 ; Willis v. Castle, 3 Gray, 356; Jaffe v. Harteau, 56 N. Y. 398, 401; Bowe v. Hunking, 135 Mass. 383 ; Tuttle v. Gilbert Manf. Co. 145 Mass. 169, 176. Such is the general rule of law in this country as between lessor and lessee. If a lessee in this State would have the result otherwise, he must bring- it about by some express stipulation in the lease, until the rule shall become modified by the legislature as it was in England, in 1885, by St. 48 & 49, Vict. c. 72 ; Walker v. Hobbs, (L. R.) 23 Q. B. D. 458. It does not apply to premises over which the lessor retains control, as a common passageway by which several tenements are reached. Toole v. Beckett, 67 Maine, 544 ; Sawyer v. McGillicudy, 81 Maine, 318.

The rule is subject to an exception arising from a duty which the law, under certain circumstances, imposes upon the lessor because of the relation subsisting between him and his lessee. For if, at the time of the letting, there is some latent or concealed defect in the premises, consisting of original structural weakness, decay or infectious disease, which the lessor knows renders their occupation dangerous and is not knoAvn to the lessee or discoverable by his careful inspection, the law makes it the duty of the lessor to disclose it; and a failure to do so is. actionable negligence if injury results. Cowen v. Sunderland,, 145 Mass. 363 ; Bowe v. Hunking, 135 Mass. 380, and cases. there cited; Scott v. Simons, 54 N. H. 426, 431; Walden v. Fitch, 70 Pa. St. 460 ; Edwards v. N. Y. & H. R. Co. 98 N. Y. 245 ; Minor v. Sharon, 112 Mass. 477 ; Cesar v. Karutz, 60 N. Y. 229 ; Wallace v. Lent, 1 Daly, 481.

While the rule caveat emptor applies to lessees for the reason that they can, if they will, protect themselves by inspection and contract, no such reason exists for applying it to such third persons as the law denominates strangers and do not stand on the same footing with the lessee. But',when a lessee enters into a dwelling-house under á lease for years, or as a-tenant at will, he, in the absence of any stipulation to' the contrary, has full possession and sole control thereof and it is practically his own private property pro hac. No one, not even-the lessor himself, can lawfully enter without the lessee’s permission or invitation express or implied. Mellen v. Millett, 126 Mass. 545. The law leaves it to the tenant to say who shall be his guest in his private dwelling-house. And if a guest does so enter and while there is injured, without his own fault, by some defect therein, he must seek his damages from him whose invitation impliedly assured him he could enter safely and who aloné is responsible for the defect which caused the injury. In such a case the guest can have no greater claim against the lessor than the lessee himself and the members of his family have. Robbins v. Jones, 15 C. B. (N. S.) 221; Bowe v. Hunking, 135 Mass. 380, 383; Burdick v. Cheadle, 20 O. St. 393 (S. C. 20 Am. R. 767) ;- Moore v. Logan, I. & S. Co. 4 Cent. R. 505-6; O’Brien v. Capwell, 59 Barb. 497 ; Nelson v. Liv. B. Co. (L.R.) 2 C. P. D. 311; 1 Thomp. Neg. 323; Shear. & B. Neg. § 503.

If when let, premises are in a condition which is dangerous -to the public, or with a nuisance upon them, the landlord may be -liable to strangers for injuries resulting therefrom; for by the letting of them in that condition and receiving rent therefor .'he is considered as authorizing the continuance of the nuisance. Nugent v. B. C. & M. R. R. 80 Maine, 62, 77, 78, and cases cited; Godley v. Hagerty, 20 Pa. St. 387 ; Stratton v. Staples, 59 Maine, 94; Burbank v. Bethel, S. M. Co. 75 Maine, 373, 383 ; Nauss v. Brua. 107 Pa. St. 85 ; Fow v. Roberts, 108 Pa. St. 489 ; Dalay v. Savage, 145 Mass. 38 ; Joyce v. Martin, 15 R. I. 558 ; Ahern v. Steele, 115 N. Y. 203.

Our opinion, therefore, is that the exceptions must be sustained.

Exceptions sustained.

Peters, C. J., Walton, Libbet, Haskell and Whitehouse, JJ., concurred. *