Opinion
Docket Nos. 6, 7, Calendar Nos. 47,424, 47,425.
Decided October 13, 1959.
Appeal from Saginaw; Dehnke (Herman), J., presiding. Submitted June 2, 1959. (Docket Nos. 6, 7, Calendar Nos. 47,424, 47,425.) Decided October 13, 1959.
Case by Stella Awad against Arthur J. McColgan, Elizabeth McColgan and others for personal injuries sustained by reason of deterioration and collapse of porch at rented premises. Similar action by Ally Awad for expenses. Cases tried together. Judgments for defendants non obstante veredicto. Plaintiffs appeal. Affirmed.
Heilman Purcell ( Maurice C. Perkins, of counsel), for plaintiffs.
Stanton MacKenzie, for defendants.
Defendants were the owners of a building in Saginaw, comprising a restaurant on the ground floor and living quarters on the floor above. They had leased the upper floor to Ally Awad, plaintiff herein, for some 7 years prior to the accident. At the rear of the building there was a porch, with steps leading to the ground. Mr. Awad had complained to the owners that the porch and steps, which were obviously in process of deterioration, needed repairs. These they agreed to make, but did not. The porch later collapsed, injuring Stella Awad, his wife.
Two actions were brought, one by the husband, the other by the wife, tried together before a jury. The plaintiffs and causes will occasionally be referred to in the singular for purposes of clarity.
The declaration charged in part as follows:
"That plaintiff was free from any negligence and/or contributory negligence in the premises, and her injuries were caused by a breach of the covenants to keep said premises in repair by said defendants and/or their negligence in allowing said premises to become so dilapidated and run down as to constitute a nuisance and a dangerous instrumentality to those having a right to use the same."
During the trial, however, after deliberations which were apparently not reported, the following was placed in the record by the trial court:
"The Court: Let the record show that plaintiffs' counsel has indicated that plaintiffs will abandon the contract theory and wish to go to the jury only on the nuisance theory."
The jury were subsequently instructed, in substance, that a verdict might be returned in favor of plaintiffs if they should find (a) that defendants had permitted the porch to deteriorate to such a dangerous condition that it constituted a nuisance, (b) that defendants knew, or in the exercise of reasonable care should have known, of the existence of the said condition, (c) that Stella Awad exercised reasonable care for her own safety, and (d) that the said condition was the proximate cause of the injuries sustained. A general verdict was returned in favor of plaintiffs. The court below granted a motion for judgment non obstante veredicto, and plaintiffs have taken an appeal.
We note in passing that exactly what plaintiffs' nuisance theory comprehended was never made clear to the trial court nor has the obscurity been relieved in proceedings before this Court.
The following appears in the opinion on motion for judgment non obstante veredicto:
"I have not been successful in obtaining a clear-cut, unequivocal statement of plaintiffs' position on this point [the relation of plaintiffs' nuisance theory to the housing law, CL 1948, § 125.401 et seq. (Stat Ann 1958 Rev § 5.2771 et seq.)] notwithstanding several attempts to clarify it. * * *
"Under date of May 9th, plaintiffs' counsel wrote me: `We think the charge will show the situation is probably limited to a nuisance, and we are going to see if we can find a few cases on nuisance for your consideration.' To date I have had no further clarification of plaintiffs' position, or citation of authorities satisfactorily answering those supplied in behalf of defendant."
We thus approach the theory of nuisance ab initio. Nuisance is the great grab bag, the dust bin, of the law. It comprehends interference with an owner's reasonable use and enjoyment of his property by means of smoke, noise, or vibration; the obstruction of private easements and rights of support; interference with public rights, such as free passage along streams and highways, the enjoyment of public parks and places of recreation, and, in addition, activities and structures prohibited as statutory nuisances. Negligence is not necessary to nuisance, though many wrongs thus denominated are made so through the defendants omitting to perform a duty, such as Mr. Justice Cardozo's example of "The coal hole, built under a license, [which] may involve a liability for nuisance, if there is negligence in covering it." It may be either public or private, and there is no need that we here enumerate the distinctions. In short, nuisance, as was well put by Thayer, "is a good word to beg a question with. It is so comprehensive a term, and its content is so heterogeneous, that it scarcely does more than state a legal conclusion that for one or another of widely varying reasons the thing stigmatized as a nuisance violates the rights of others."
See Seavey's recent discussion of the law of nuisance in 65 Harv L Rev. 984.
McFarlane v. City of Niagara Falls, 247 N.Y. 340, 343 (100 NE 391.57 ALR 1).
Public Wrong and Private Action, 27 Harv L Rev, 317, 326.
Let us see, then, in what respects, if any, the defendants have violated the rights of the plaintiffs. Mrs. Awad was injured when the porch of the premises she occupied as a tenant collapsed. This does not impose liability upon the landlord. A tenant may rent tumble-down property if he wishes and if it does in fact tumble down during his occupancy, the landlord, without more, is not liable. Statutes may conceivably affect such result, particularly that act known as the housing law, but the act was not in effect in this area, nor are we cited to any ordinance similar in scope. But we have more in this case than mere tenancy. We have a promise by the landlord to repair, and he did not. There thus may be a cause of action for breach of contract but in our jurisdiction it has been settled law for some time that, in the words of Mr. Justice WIEST, in Kuyk v. Green, 219 Mich. 423, 425, "an action in tort cannot be predicated, by a tenant, upon a breach by a lessor of an agreement to make repairs." We would not be understood as speaking too broadly in an area of such unlimited expanse. We do not hold that the negligence-nuisance type of action referred to above may never be brought. In a proper case it may be, and, if so, it partakes of the essentials of a negligence action, including such defenses as that of contributory negligence. (See annotation, 57 ALR 7.) The name (negligence or nuisance) does not control the result. The point is, however, that the gravamen of the action must sound in tort and a landlord's breach of promise to repair does not so sound. Kuyk v. Green, supra.
PA 1917, No 167, as amended (CL 1948, § 125.401 et seq. [Stat Ann 1958 Rev § 5.2771 et seq.]).
The authorities cited by plaintiffs as justifying recovery upon some theory of nuisance are all inapplicable to the situation before us. Kern v. Myll, 94 Mich. 477, turned on whether the landlord had actual knowledge of a concealed dangerous condition, which his tenant urged he had failed to disclose. In Harris v. Cohen, 50 Mich. 324, the liability of a landlord for the maintenance of a nuisance was indeed put in issue, but it was a liability with respect to the owner of adjacent land. Fisher v. Thirkell, 21 Mich. 1 (4 Am Rep 422), involved an action by a member of the general public against both tenants and owners to recover damages received by her by falling into a "hole in the sidewalk on Woodward avenue, Detroit." None of these cases involved an action by a tenant against his landlord arising out of a promise to repair. We are not persuaded that Kuyk v. Green, supra, is in error. See, also, Huey v. Barton, 328 Mich. 584.
Affirmed. Costs to appellees.
DETHMERS, C.J., and CARR, KELLY, BLACK, EDWARDS, VOELKER, and KAVANAGH, JJ., concurred.