Hoger v. Massachusetts Mutual Life Insurance Co.

The scope of the agreement to repair presented purely a fact issue. Reasonable minds could reach different conclusions as to whether the agreement covered the faucet in all of its parts or was restricted to the replacement of washers. Counsel for defendant evidently realized this situation because, at his request, this special interrogatory was submitted to the jury: "Did defendant Henry Shanedling assume the responsibility to repair the faucet and all the parts thereof, including the porcelain handle known as plaintiff's exhibit A?" This was answered by the jury in the affirmative.

This faucet had been leaking, fixed again and again, but "all the time, no sooner just fixed than it would start to leak again." It "gave a lot of trouble," and defendant's handy man "just could not seem to get it to stop leaking for more than a few days at a time." On Friday, September 11, the faucet was again leaking, and so defendant's handy man, not a plumber, worked on it but said he did not have enough time to finish the job. He came back Monday, the 14th. When he had finished the job he said, "There — it drips a little now, but see — push on it hard — like that — and it will stop." This demonstration was furnished in such a way as to lead plaintiff to believe that it was necessary to use considerable force to stop the drip. His testimony is that on the following day, "I finished washing my hands and I wanted to shut the faucet off and when I turned it like Carl [defendant's handy man] told me to do it broke in the palm of my hand." To me it seems clear that the demonstration on the part of Carl was something the jury had a right to consider in determining whether plaintiff used such excessive force as to go beyond the instructions and demonstrations made by Carl. The jury saw and heard defendant's workman as well as plaintiff. It might find from their appearance as to whether their difference in physical strength justified plaintiff in pushing "on it hard," as instructed by Carl, was the same as or greater than plaintiff's pushing it "as hard as he could." Carl's illustration of what was to be done perhaps as much as the verbal instructions going with it might well have afforded the jury the basis upon which to find negligence, contributory negligence, or want of either. Both issues were duly submitted, and to my mind the record sustains the jury's findings.

"The rule in this jurisdiction is, where a landlord agrees to repair the leased premises, and his negligence in making repairs results in an unsafe condition of the premises, he is liable for injuries caused thereby to persons lawfully upon the premises who are not guilty of contributory negligence. Barron v. Liedloff, 95 Minn. 474, 104 N.W. 289. In that case the landlord had agreed to make certain specific repairs and to put the premises in first-class condition. He undertook to do so, but was negligent in failing to remove a rotten board. If the lessor agreed to repair the railing, and did it in such manner that it was apparently safe, then the lessee had a right to assume that it was safe, and the landlord is liable, if he failed to exercise ordinary care in making the repairs." Good v. Von Hemert, 114 Minn. 393, 394, 131 N.W. 466. The following cases, too, are helpful: Polackoff v. Henry Sonn Co. Inc.240 A.D. 959, 268 N.Y. S. 879, affirmed 264 N.Y. 702,191 N.E. 634 (much similar as to facts to present case); Richmond v. Standard Elkhorn Coal Co. 222 Ky. 150, 300 S.W. 359,58 A.L.R. 1423.

Where, as here, the landlord undertakes to repair the leased premises, and does so negligently, thereby causing injury, he is liable for his tort. Such liability follows, not from duty to repair, but because he does the repair job negligently and thereby creates a risk of harm. Gill v. Middleton,105 Mass. 477, 7 Am. R. 548; Gregor v. Cady, 82 Me. 131, 19 A. 108,17 A.S.R. 466; Rowan v. Amoskeag Mfg. Co. 79 N.H. 409, 109 A. 561; Marks v. Nambil Realty Co. Inc. 245 N.Y. 256, 157 N.E. 129; Rehder v. Miller, 35 Pa. Sup. 344; Zimmerman v. Homer B. L. Assn. 111 Pa. Sup. 345, 170 A. 703; Tarnogurski v. Rzepski,252 Pa. 507, 97 A. 697; Smith v. Tucker, 151 Tenn. 347,270 N.W. 66, 41 A.L.R. 830.