Littlehale v. Osgood

False Representations— Unfit Sanitary Condition of House — Exceptions. In aft action against a lessor, for alleged false representations that a house appurtenant to which was an old well filled with filthy matter was in a good sanitary condition, the burden of proof is on the plaintiff to show that the condition of the well, which was an adequate cause of disease, was the actual cause thereof» and it is not sufficient to show that it might have been the cause, but the fact must be proved, and the jury cannot act on mere conjecture or speculation. Ait exception to. a statement of undisputed evidence in a charge to the jury will not be sustained where the ruling as to its effect does not appear. Where the question whether there is an implied warranty that premises let furnished are in a good sanitary condition does not appear to have been raised at the trial, it cannot be considered on exceptions.

Two actions of tort, for alleged false representations by the! lessors that a house was in good sanitary condition. Writs dated February 12 and 13,1891, respectively. Trial in the Superior Court, before Thompson, J., who allowed a bill of exceptions, in substance as follows. On December 7, 1888, the plaintiff, Albert W. Littlehale, hired the premises, furnished, of the defendants, and with his family, including his minor child Blanche, the plaintiff in the second action, entered into occupation thereof, and continued to occupy them as a tenant at will until March 3, 1890. On February 10,1890, the female plaintiff became ill with diphtheria, and during her illness an inspector of the board of health of the city of Boston visited the premises, and detected an odor in a water-closet in the basement of the house, the cause of which the defendants were ordered to remove. In digging under the wall of the basement, in obedience to the order, the defendants discovered an old well, partly beneath and partly outside the house, on the same side as the windows of the sleeping-room of the female plaintiff, but at the other end. The well was partly filled with water and fecal matter from the water-closet, causing a stench. The defendants immediately caused the well to be filled up, and the water-closet to be discontinued. When the well was discovered the water-closet was discharging into it through a lead trap in which were two holes that rendered it useless. The plaintiffs offered evidence tending to show a representation by the defendants of the good sanitary condition of the premises, made at the time when they entered into occupation of the same, which representation was denied by the defendants, and also evidence tending to show that the condition of the well was an adequate cause of diphtheria. The plaintiff in the first action testified, on cross-examination, that he hired the premises for four months beginning December 7, 1888, under a verbal agreement, and that frequently during his occupancy there was an odor about the house which at times was very intense ; that when he renewed his hiring nothing was said by either of the parties with reference to the sanitary condition of the premises; that none of his family used the basement water-closet; and that his daughter Blanche, until the time when she became ill, attended school in another part of the city, and in going to and from school rode on the street cars when she did not walk. The defendants introduced evidence not material to be stated. The judge instructed the jury, in substance, that the injury for which the plaintiffs sought to recover must be shown by them to be the result of a wrong on the part of the defendants*; that it was not a matter for conjecture or speculation, but for proof, of which the plaintiffs must satisfy them affirmatively; and that it was not enough that the condition of the well might be one of the causes that would produce diphtheria, but it must appear that it was the actual cause, and that the diphtheria did result from it. The judge further stated to the jury that considerable had been said with regard to the contract of the parties ; that the plaintiff in the first case said that in April, 1889, he renewed his hiring of the premises, when he told the defendants that, he would take them for a year, and that at that time nothing was said in relation to the sanitary condition of the premises; and that the testimony of the defendants was not materially different, but that they said that the plaintiff in the first case hired the premises up to April 1, 1889, and at that time told them that he would take the premises for a year. The jury returned a verdict for the defendants in both actions ; and the plaintiffs alleged exceptions.