Deutsch v. Max , 318 Pa. 450 ( 1935 )

I am unable to agree with the opinion of the majority. It points to no case, in this Commonwealth or elsewhere, in which a landlord has been held liable to a servant of a tenant under circumstances such as are here presented. In my judgment, the result of the majority's decision will be to open the door to innumerable fraudulent and unfounded claims and to impose an unduly heavy burden on landlords — a burden that is without sanction in the law.

The fundamental weakness of the majority opinion lies in its assumption, without discussion, that plaintiff, a domestic servant of the tenant, is in the position of a "third person" or stranger to the premises and is therefore owed some higher duty by the landlord than is the tenant. No consideration is given to the question whether or not a servant is in a better position than the tenant, and no reason is disclosed why any different rule should apply to the tenant's domestic servant than to a member of the tenant's family. Plaintiff's counsel admit their inability to find a case in the appellate courts of this Commonwealth decisive of the question of plaintiff's status, and no such case has been referred to by the majority. Under these circumstances, it seems to me a mistake to avoid discussion of the problem altogether and to fail to state the grounds on which a principle well established in the common law and in the law of most jurisdictions today is being summarily rejected.

In the first place, it is clear that the tenant in the instant case could not recover from the landlord. It has many times been pointed out in this Commonwealth that, in the absence of a covenant requiring the landlord to repair, "the tenant takes the property subject to all existing defects which can be ascertained by inspection": Levin v. Phila., 277 Pa. 560; Moore v. Weber, 71 Pa. 429; Levine v. McClenathan, 246 Pa. 374; Fed. Metal Bed Co. v. Alpha Sign Co., 289 Pa. 175; Robinson v. Heverin, 50 Pa. Super. 546; Redman v. Weeter,86 Pa. Super. 173; Rosser v. Cusani, 97 Pa. Super. 255. As was said by Mr. Justice SHARSWOOD in Moore v. Weber, supra, "The rule here, as in other cases, is caveat emptor. The lessee's eyes are his bargain. He is bound to examine the premises he rents, and secure himself by covenants, to repair and rebuild." Accordingly, where damages result to the tenant by reason of such defects, there can be no recovery against the landlord: Levine v. McClenathan, supra; see Levin v. Phila., supra; Robinson v. Heverin, supra; Bohlen, "Landlord and Tenant," 35 Harv. L. Rev. 633, 637. It is a well recognized exception to this rule that the landlord is under a duty to disclose hidden defects or traps of which he knows and which a reasonable inspection by the tenant would not disclose, and that he is liable for injuries resulting from his failure to fulfil that duty: see Levin v. Phila., supra; Restatement, Torts, section 358. But in the case before us one of plaintiff's own witnesses testified, without contradiction, that the defective condition could have been seen by anyone making a reasonable inspection of it, while the tenant himself testified that he had known the porch in question was in need of repair, and plaintiff's counsel admit in their brief that such is the case. Plainly, therefore, there was no concealment of the defect, nor can it be said that the landlord had reason to suppose that the tenant would not discover it. Such being the case, the tenant clearly could not have recovered had he been the person injured.

That a servant of the tenant, along with sublessees, members of the tenant's family, guests and other invitees of the tenant, is barred from recovery against the landlord where the tenant is barred is a common-law principle so well settled that it can admit of no doubt whatever: Levin v. Phila., supra (sublessee); Robinson v. Heverin, supra (member of tenant's family); Nelson v. Liverpool Brewery Co., 2 C. P. D. 311 (employee); Lane v. Cox, [1897] 1 Q. B. 415 (same); Willson v. Treadwell, 81 Cal. 58 (same); Whitmore v. Orono Pulp Paper Co., 91 Me. 297 (same); Phelan v. Fitzpatrick, 188 Mass. 237 (member of family); Dalton v. Gibson, 192 Mass. 1 (cook); Boudreau v. Johnson, 241 Mass. 12 (employee); Clark v. Sharpe,76 N.H. 446 (member of family); Clyne v. Helmes, 61 N.J.L. 358 (same); O'Brien v. Capwell, 59 Barb. (N.Y.) 497 (washerwoman); Ryan v. Wilson, 87 N.Y. 471 (employee); Elefante v. Pizitz,182 A.D. 819, affirmed 230 N.Y. 567 (guest); see Moore v. Logan Iron Steel Co., 3 Sadler 143, 147; Robbins v. Jones, 15 C. B. (N.S.) 221, 240; Cavalier v. Pope, [1906] A. C. 428, 430, 432; Huggett v. Miers, [1908] 2 K. B. 278, 283, 288; Towne v. Thompson, 68 N.H. 317, 319; Taylor, Landlord and Tenant (9th ed.), section 175a; Restatement, Torts, section 356. As was said by Lord MacNAGHTEN in Cavalier v. Pope, supra, quoting from ERLE, C. J., in Robbins v. Jones, supra, "A landlord who lets a house in a dangerous state is not liable to the tenant's customers or guests for accidents happening during the term: for, fraud apart, there is no law against letting a tumble-down house." The ground of the rule is that since invitees of the tenant are brought on the land through the tenant's and not the landlord's initiative, they should be required to look to the tenant, and not to the landlord, who has no control over their coming and going. As is pointed out by Taylor, supra, "The subtenant, servant, employee, or even a customer of the lessee, is under the same restriction [as the lessee]; because, entering under the tenant's title, and not by any invitation, express or implied, from the owner, they assume a like risk." In Tiffany, Landlord and Tenant, section 96 (b), it is said: "The lessee's knowledge is in effect imputed to the person injured, or rather, perhaps, it is the lessee's duty, not the lessor's, to inform persons, entering on the premises by the former's invitation or permission, of the dangerous condition. A different rule, requiring the lessor to give such information to every person whom the lessee may allow upon the premises, would impose on the lessor the duties of an occupant while divested of the benefits, and would in effect prevent the leasing of any premises in which there is a concealed source of danger to persons who might enter thereon."

Since the tenant could not have recovered from the landlord in the case at bar, and since plaintiff is the tenant's servant and therefore in no better position than he, it follows that plaintiff cannot recover. Such was the result reached in O'Brien v. Capwell, supra, where the facts were very much like those in the case before us. There plaintiff, a washerwoman in the tenant's employ, fell from a porch when the railing upon which she was hanging clothes gave way. It appeared that the porch and railing had been in a condition of decay at the time of the lease, and that the landlord had notice of this condition. Judgment upon a verdict in plaintiff's favor was entered against the landlord. In reversing the judgment and declaring that a nonsuit should have been granted, the court pointed out that, since there was no fraud or deceit, or express covenant by the landlord to repair, the tenant could not have recovered, and therefore plaintiff, who as his servant was in no better position than the tenant himself, was not entitled to recover.

It is said in the majority opinion that "This case is ruled by the principle that where a landlord lets premises in aruinous condition or in a condition amounting to a nuisance, the landlord is liable for injuries resulting therefrom." No such principle is, in my opinion, applicable to the case before us. The majority rely on Cunningham v. Rogers, 225 Pa. 132, Harte v. Jones, 287 Pa. 37, and Mitchell v. Sinn, 308 Pa. 1, in support of this principle. In each of those cases, however, it is expressly said that the liability referred to is the liability of a landlord to third persons. No attempt is made in any of them, or in any other Pennsylvania case referred to by the majority, to define or even suggest what is meant by "third persons." Furthermore, the statement relied on was wholly unnecessary to the decision in each of the cases, since the holding in each was that the landlord was not liable. An examination of the cases discloses that the statement that the landlord is liable to third persons when he has let the premises in a ruinous condition first appears in Cunningham v. Rogers, supra, where it is quoted from 2 Woodfall, Landlord and Tenant (1st Am. ed.), *735. It appears from Woodfall that this statement was taken from the following language by LOPES, J., in Nelson v. Liverpool Brewing Co., supra (also unnecessary to the decision of the case in which it occurs, since the landlord was held not liable): "There are only two ways in which landlords or owners can be made liable, in the case of an injury to a stranger by the defective repair of premises let to a tenant, the occupier and the occupier alone being prima facie liable: first, in the case of a contract by the landlord to do repairs, where the tenant can sue him for not repairing; secondly, in the case of a misfeasance by the landlord, as, for instance, where he lets premises in a ruinous condition." In support of that statement LOPES, J., cited Payne v. Rogers, 2 H. Bl. 350, Todd v. Flight, 9 C. B. (N.S.) 377, Russell v. Shenton, 3 Q. B. 449, and Pretty v. Bickmore, L. R. 8 C. P. 401. In Todd v. Flight the plaintiff, owner of property adjoining a stack of chimneys belonging to defendant, sued for the damage to his premises caused by the falling of the chimneys. Similarly, in Russell v. Shenton, plaintiff was an adjoining landowner who sued for damage from drains and sewers on the defendant's land. In Payne v. Rogers and Pretty v. Bickmore the plaintiffs were pedestrians on the streets who were injured by defects in the footways adjoining defendants' premises. It may be noted that in the Russell and Bickmore cases the landlord was held not liable. In view of the fact that the plaintiff in each of those cases was a landowner or pedestrian, it cannot successfully be contended that LOPES, J., intended the term "stranger" in his statement to include servants or other invitees of the tenant, particularly when it is remembered that it is held in other English cases that invitees of the tenant are in no better position than the tenant himself.

It is true that in Folkman v. Lauer, 244 Pa. 605, and Kirchner v. Smith, 207 Pa. 431, invitees of the tenants were allowed to recover from the landlord, and the ground in each was stated to be that a landlord who lets premises in a dangerous condition is liable for injuries resulting therefrom. The facts of those cases, however, are clearly unlike those of the case before us. In Folkman v. Lauer the plaintiff was injured by the collapse of a grandstand in a baseball park owned by the defendant and leased to a tenant for the purpose of public entertainment. In such a case the landlord, having reason to believe that the unsuspecting public will be admitted before dangerous defects of which he knows or should know are removed, is under a duty to remove such defects before turning over the premises to the tenant. His liability for injuries resulting from his failure to do so is a recognized exception to the general rule: see Restatement, Torts, section 359. Edwards v. N.Y. H. R. R. Co., 98 N.Y. 245, cited by the majority, is also a case of this sort. In Kirchner v. Smith the plaintiff, although a roomer of the tenant, was injured on the sidewalk; furthermore, there was testimony (which, in view of the verdict for plaintiff, had to be taken as true) that the landlord had promised, before the execution of the lease, to make necessary repairs, and that he had notice of the defect which caused plaintiff's injury. Where the landlord has contracted to repair, either the tenant or his invitee may recover for injuries resulting from the landlord's negligent failure to repair: see Restatement, Torts, section 357. Carson v. Godley, 26 Pa. 111, and Cowen v. Sunderland, 145 Mass. 363, relied on by the majority, both fall within the exception previously referred to, that where the landlord has notice of a latent defect and knows or has reason to know that the tenant will not discover it, he is liable to the tenant, as well as to the tenant's invitee, for injuries resulting therefrom. On the other hand, Knauss v. Brua, 107 Pa. 85, Fow v. Roberts, 108 Pa. 489, and Wunder v. McLean, 134 Pa. 334, cited in the majority opinion, are all cases in which the plaintiff was an adjoining property owner who complained of the leakage of offensive sewage matter into or upon his premises; while the plaintiff in McLaughlin v. Kelly, 230 Pa. 251, was a pedestrian injured by the defective condition of a sidewalk. Plainly, those cases have no bearing whatever upon the question whether a tenant can recover for injuries from defects observable upon reasonable inspection by him, and whether a servant of the tenant can recover where the tenant himself would be barred.

The opinion of the majority purports to find support for its position in Tiffany, supra, and in an article on "Tort Liability of a Landlord," in 26 Mich. L. Rev. 260. An examination of the passages from which the majority quotes discloses, however, that in both instances the discussion is concerned with concealed defects or dangers, defects which are known to the lessor but which are "not apparent to the intending lessee," in which case of course there can be no doubt of the landlord's liability to the tenant and the tenant's invitees if he fails to warn the tenant. It is in fact expressly pointed out by Tiffany (sections 86 (a) and 96 (a)) that the landlord is not liable to the tenant for defects known to the latter or observable upon reasonable inspection, and that, as to persons "rightfully on the premises by the tenant's request or permission . . . the landlord is liable in so far as he would be liable to the tenant, and no further." The same analysis is found in the article in the Michigan Law Review.

Clearly, therefore, the position of the majority is without proper support either in reason or in authority, and in fact runs counter to a sound and firmly established rule. Such being the case, I am compelled to dissent from its conclusion. The judgment of the court below should be affirmed.

Mr. Justice SCHAFFER joined in this dissent.