delivered the opinion of the court.
Plaintiff argues under point 1, subdivision a, that it “makes no claim for damages caused by the negligence of the contractor who installed the system. The claim is for the negligence of appellant after the system has been installed and in use for a considerable length of time, and for his failure to use reasonable care in inspecting and repairing defects”. This would seem to eliminate from the case questions which might otherwise arise, as to damage resulting from faulty construction, or as to the employment of an independent contractor, which operated to exonerate the landlord for negligent construction by such contractor; so that the liability, if any, must be predicated, as frequently iterated by counsel for plaintiff in their brief, upon an obligation to inspect and maintain the sprinkler system in good order, imposed by law. It is therefore clear that if plaintiff’s contention in this regard is sound, neither the lease nor contract under which the landlord entered plaintiff’s premises and installed therein the sprinkler system has any relevancy. This .attitude is, we think, feasible from the further fact that the action is tort and not founded on the contractual relation of the parties.
The sprinkler head which caused the trouble was on the ceiling of the sixth floor, immediately back of the passenger elevator. The cause of the flow of water from the sprinkler head seems to have been the gradual disintegration or crawling of the solder in the link. Bice, the expert, testified on this point in substance that two parts of the link at the end of the lever are soldered together; that the defective head separated and pushed apart; that the solder does not hold the two parts of the link together securely; that they push apart or “crawl” and release the tension on the gauge, holding the water cavity, allowing it to leak; that the solder should melt and the parts draw apart when there is a sufficient degree of heat to fuse, to allow it to open as it should have done in case of fire; that there was no way of telling that the solder was soft or creeping except by a minute examination; that such a condition could not be ascertained from the floor. The sprinkler head, so far as we are able to judge from the evidence, gave no evidence of being out of order from the time it was installed in December, 1902, until in the night of July 29,1903, when, in the absence of plaintiff and its employes, the water burst through the sprinkler head. The defect must have been latent and not ascertainable except from a critical examination of all its parts. Such is the trend of the testimony. The most important object of inspection was to keep air pressure at all times of sufficient volume, so that in case of fire the solder holding the links in the sprinkler heads would fuse and precipitate water in the ample quantity which was intended when the apparatus was installed. This was done, and the inspection of the sprinkler heads was from the floor. Had the “crawling” of the solder been gradual, such condition would have been made manifest by a leak from the sprinkler head. No leak was discernible at the time plaintiff closed its place on the evening preceding the accident. In view of these facts a final analysis of plaintiff’s contention leads to the conclusion that the claimed duty of defendant, cast upon him by law, was to so scrutinize the sprinkler heads that by no misadventure could they become out of order and cause damage to plaintiff. This would practically impose upon defendant the liability of a guarantor of the absolute integrity of the apparatus at all times. We are unable to find any law which in these circumstances imposes any such duty' upon a landlord.
The cases to which counsel for plaintiff has cited us do not, in our judgment, have any application to the facts in this record. The cases of damage from water under the exclusive control of the landlord all resulted from the neglect of the landlord’s duty which he owed to the tenant under the contractual relationship existing between them. The cases of damage resulting from negligent conduct of a contractor while engaged in repairing demised premises for the landlord, while the landlord was upon such demised premises through such contractor for that purpose, is not by analogy akin to the case at bar, for in this case no damage occurred while the contractor was installing the sprinkling system, and not until more than seven months thereafter, and then through a latent defect not discoverable by an ordinary and usual inspection. We see no reason to differ with the rule cited to us by counsel for plaintiff from 18 Am. & Eng. Ency. of Law. 219, that “A landlord is liable to a tenant for injuries to the latter arising from any culpable negligence of the landlord in the use of the portion of the building retained under his control. This liability does not arise especially out of the relation of landlord and tenant, but is based on the broad principle that one must not so negligently use his property as to cause injury to a third person”; but the facts of this case in' no wise bring it within the scope of such rule. No culpable negligence of defendant in relation, to the sprinkling system or its management is inferable from the proofs, and certainly no negligent use of it which in the remotest degree can be said to have contributed to the precipitation of water from the sprinkler head, which caused the damage complained of to plaintiff’s property. We cannot say that the accident was brought about by a failure of defendant to do any act which the law imposed upon him as a duty. We think the defendant’s engineer’s account of his method of inspection was sufficiently thorough to meet every legal requirement, and this is quite apparent and convincing when coupled to it is the testimony of Bice, the expert, that “to constitute an inspection of this system it would be necessary to make an examination of the tanks, valves and pipes through the different floors of the building; an examination of the sprinklers such as could be made by walking through and looking at them from the floor”; also that “the commencement of that pulling away could not easily be noticed by an inspection. It is possible to do so if it had been gradual and slow; it could by close inspection, not by an examination from the floor”. The evidence last quoted is verbatim from plaintiff’s brief. We have no misgiving but that the inspection of defendant’s engineer fully met the requirements announced by Bice as sufficient.
The declaration under which the cause proceeded to trial does not state facts which affimatively show that the duty of defendant imposed upon him by law was to keep the whole of the sprinkling system installed on plaintiff’s premises in such safe condition as to make him liable to respond to plaintiff for damages resulting from any part of it getting out of order. Nor do we find any evidence in the record from which such a liability can be fastened upon defendant.
The judgment of the Circuit Court is not sustained • by either the declaration or the proofs, and it is therefore reversed with a finding of fact.
Reversed with finding of fact.