There is no obligation at common law on the part of a landlord to make repairs upon leased property or to keep the same in safe condition, apart from a contract so to do. Gallagher v. Button, 73 Conn. 172,175, 46 A. 819; Valin v. Jewell, 88 Conn. 151, 156,90 A. 36. The lease (Exhibit B) in the instant case imposes no such liability. In this case there is no contractual liability, and the action is one purely of tort, and must show some primary right of plaintiff's invaded by defendants. It appears to be established by the evidence that the tenement above the store of plaintiff had been unoccupied by any tenant for about three weeks previous to the occurrence from which damages are claimed, and it is a valid and persuasive inference, in the absence of any suggestion to the contrary, that the same was in the exclusive possession and control of defendants. They were charged with the duty of so controlling and managing the premises, that through their negligence no injury should be inflicted upon anyone, whether a tenant of another portion of the building or a stranger in no legal relation, contractual or otherwise, with them. There seems to be no reason in law, that they should not be held to the same standard of diligence toward the plaintiff, as would have been a tenant in possession of the vacant tenement. The ground of liability therefore is the negligence of the landlord.
In Priest v. Nichols, 116 Mass. 401, it appeared that goods of a tenant had been injured by the escape of water from a waste pipe of an engine situated in another part of the building, by reason of the landlord's negligence, and the court held that recovery might be had from the landlord. In the opinion the court says: "The rule that a landlord is not bound to keep the *Page 238 premises of his tenant in repair, and therefore cannot be held responsible for negligence, if out of repair, has no application to the facts presented in this case." To the same effect are Glickauf v. Maurer, 75 Ill. 289;Toole v. Beckett, 67 Me. 544; Moore v. Goedel, 34 N.Y. 527,532. The latter is a leading case, and was followed in Martin v. Coleman, 14 Misc. (N. Y.) 505,35 N.Y.S. 1069; Levy v. Korn, 30 Misc. (N. Y.) 199,61 N.Y.S. 1109; Simon-Reigel Cigar Co. v. Gordon-BurnhamBattery Co., 20 Misc. (N. Y.) 598, 46 N.Y.S. 416;Greco v. Bernheimer, 17 Misc. (N. Y.) 592,40 N.Y.S. 677. The New York cases above cited not only maintain the rule of the landlord's responsibility, but also hold that the doctrine of res ipsa loquitur applies from the mere fact of the unexplained flow of the water. It would appear that the facts in the instant case bring it within the rulings of this court in that regard as set forth in Stebel v. Connecticut Co., 90 Conn. 24,96 A. 171, but upon the pleadings and the evidence therein, we do not think it necessary to invoke this rule. The general rule derived from the cases above cited is stated in 1 Tiffany, Landlord Tenant, p. 622, § 88.
Applying the above considerations to the present case, we are to inquire whether the evidence produced by plaintiff at the trial presented a prima facie case of negligence on the part of the defendants in the care, management and inspection of the unoccupied tenement above the store. There had been for sometime previous to the occurrence of the injury very severe weather with temperatures as shown by the weather report figures, Exhibit A in the case, which could scarcely fail to freeze water in a room not heated and to cause water pipes to burst, and then for a day or two a considerably higher temperature adequate to thaw out the pipes and liable to cause a flow of water to descend through *Page 239 the ceiling and cause damage to the plaintiff's goods. The landlord must have known of this, and especially as one tenant had recently left the building by reason of its coldness. Unless it can be held as a matter of law that a landlord need pay no attention to plumbing under his control in vacant tenements, so far as the condition of this plumbing may affect tenants in adjoining and lower parts of the building, with respect to weather or any other agency likely to damage such plumbing, it seems clear that the situation presented in the instant case, unexplained or justified in any legal way, discloses facts calling for a defense upon its merits. The fact that the defendant Katie Meyers, sole owner of the building, entered the store while the water was still leaking through the ceiling and that her attention was called to the fact, is not without significance. Some damage was probably done after that, as she was waited upon before plaintiff went to the plumber. The evidence in the case was of such character that conceding to plaintiff all the favorable inferences reasonably to be drawn thereupon, he was entitled to have it considered whether weak or strong.
In considering the case presented on a motion for a nonsuit, the court was not concerned with the sufficiency of the complaint in point of law; there are other ways provided to test that matter. The sole question before the trial court was whether, upon the allegations of the complaint and the admissions and denials in the subsequent pleadings, sufficient facts had been proved to make out a prima facie case. Thames Steamboat Co. v. Housatonic R. Co., 24 Conn. 40, 49; Cook v. Morris,66 Conn. 196, 204, 33 A. 994; Fitch v. Bill, 71 Conn. 24,30, 40 A. 910; Girard v. Grosvenordale Co., 83 Conn. 20,25, 74 A. 1126; Pentino v. Pappas, 96 Conn. 230,232, 113 A. 451; Baggish v. Offengand, 97 Conn. 312,320, 116 A. 614; Galvin v. Birch, 98 Conn. 228, 231, *Page 240 118 A. 826. The plaintiff, upon the evidence produced, was entitled to a full trial upon the merits of the controversy.
There is error and a new trial is ordered.
In this opinion the other judges concurred.