Recoupment of damages arising out of the same transaction, is in the nature of a cross-action. In order to a defense to the claim of plaintiff below for rent, by way of recoupment of damages sustained by defendant, by reason of the alleged nuisance, the latter was subject to the same requirements, in respect to evidence, to which he would have been subject had he brought a distinct action against the plaintiff, as his landlord, to recover for the same injury. In that case the burden of proof would have been upon him to establish all the essential elements of a cause of action by a preponderance of evidence. Was that requirement met in making out the defense which prevailed in this case? We think not. There is no pretense that the landlord was under any express contract to keep the demised premises in repair. It is clear law, that except, perhaps, as to letting a furnished house or apartments, there is no implied contract on the demise of real estate, that it shall be fit for the purposes for which it was let. Taylor on Landlord and T@uant, § 381, and cases in note 1, p. 294.
A liability upon contract, express or implied, being excluded from the consideration of the case, then the question arises, what circumstances should be shown in order to fix the landlord with responsibility for the damages in question. The act of providing his building with artificial means for supplying it with water and water-closets, is of itself a lawful act, and does not impose upon the owner any obligation in the nature of a guaranty of the safety to occupants of a lower floor. So that if, in providing such means, the owner makes use of sufficient materials, and does the work, or causes it to be done in a reasonably careful, skillful and workmanlike manner, then he would be liable to the occupant of a lower floor only for an improper or negligent use of such agencies. If however they were not under his management, or that of his servants, but were under the management of a tenant or tenants, and the latter made a negligent use of them, the landlord would not be responsible. The basis of a liability in the absence of contract must, therefore, be laid in some act of malfeasance on the part of the landlord, or negligence in him or his servants, resulting in the injury. Robbins v. Mount, 4 Robertson (N. Y.), 553; 1 Thompson on Neg. 91; Shearm. & Redf. on Neg. §§ 512, 513 and 514.
In Warren v. Kauffman, 2 Phila. 259, the Supreme Court of Pennsylvania held that if a man has a hydrant on hik prerriises, and the water runs from it and through his floor into a story beneath him and injures the occupant, there ipso facto negligence is prima, facie made out, and he is responsible for the injury, unless he can show that it happened in some other way. ■
The facts of that case are not reported; but we are bound to assume from those grouped together in the brief judgment of the court, that the hydrant in question there was at the time under the management of the defendant or his servants. A tenant of the owner could not from that relation alone, be regarded as the servant of the owner. The doctrine, as applied by the court there, is based upon reasoning like this : Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care. For authorities as to the application of the rule, Sec. 2, Thomp. on Neg. 1227, et seq. If that rule can be properly applicable to this case, under any circumstances, it clearly cannot be, without evidence that the water-closet in question was under the management of the plaintiff below, the landlord or of his servants. There was evidence that the landlord made certain repairs in a wash-room in the upper story; but the defendant gave evidence tending to show that the upper story or stories were occupied by tenants of the jffaintiff. There was no evidence tending to show where the particular water-closet from which defendant claimed the filthy water came which injured him was located, or tending to show any defects in the construction or use of the same, beyond the mere fact that such water ran down into defendant’s rooms. So we are forced to the conclusion that the verdict is unsupported by the testimony.
The court below permitted the defendant to prove, by way of enhancing his damages, that Bergheim, who had sub-let of defendant one of the demised stores, was also injured by such water coming down on his goods; that he made a claim against defendants for damages, which the latter compromised, allowing Bergheim fifty dollars. There was no evidence to show how defendant was liable to Bergheim for such damage, and the evidence was therefore incompetent.
As the case stands, we cannot construe the covenants of defendant contained in the lease, to determine whether they would bar his right of recovery, for the reason that the real cause of the nuisance is in no respect disclosed by this record, the evidence only tending to show that the filthy, bad-smelling water came from a water-closet in an upper story. Whether the immediate cause or defect was in the plumbing, water-pipes or sewerage, or what it was, we cannot tell from this record. The instruction asked for plaintiff below which the court refused, seems to submit the construction — a question of law when the surrounding circumstances are ascertained — to the jury, and to assume that the nuisance was occasioned by the mere overflow of water coming from the plumbing or water-pipes. What was the proximate cause, was a question of fact for the jury to find from evidence. We think that instruction was properly refused, but that there should be a new trial on the other’grounds indicated.
Reversed and remanded.