138 Massachusetts, 466. - 1885.
Contract, with a count in tort, to recover for the loss by fire of a building and certain personal property therein.
Plaintiff let to defendants the building in question, excepting certain rooms in the second story which plaintiff continued to occupy. During the term the building was destroyed by fire. The jury found that the property of plaintiff was burned by the carelessness and negligence of defendants, but not intentionally. Judgment for plaintiff, defendant appeals.
Field, J.: The property destroyed or damaged by fire was, first, the portion of the buildings let by the plaintiff to the defendants, or to one of them; second, the remaining portion of the building belonging to the plaintiff and in his possession; and, third, personal chattels of the plaintiff in part in the portion of the building let, and in part in the remaining portion. * * *
The defendants requested an instruction that they were not liable for mere negligence, which was refused; and the court instructed the jury that, "if the fire was caused by their negligence," they would be liable, which means liable for the whole loss. * * * [Here follows a discussion of the law as to the spreading of fires to neighboring property, ]
It must, however, we think, be regarded as too well established to be overturned by judicial decision that the occupant of a building is responsible to the owners of adjoining property for the want of ordinary care on the part of himself or his servants, acting within the scope of their employment, in kindling or guarding the fires used for heating the building.
The distinction between the liability of a tenant at will to his landlord, and of an occupant to his adjoining proprietors for damage by fire, is sharply drawn in Panton v. Isham, 3 Lev. 359. On special verdict, it was found that the plaintiff was seized of six stables, and demised one to the defendant, for a week, for eight shillings, and so from week to week at eight shillings per week, as long as both parties should please, and demised the other five stables to other persons for divers terms yet to come, whereby they were possessed, and the fire by the defendant's negligence six weeks afterwards began in the stable demised to the defendant, and burnt the same and all the other stables; and it was held " that for the stable demised to the defendant himself no action lay; for the demise to him could be no more than a term for three weeks, and for the residue he was tenant at will, against whom no action lay for negligent waste, as 5 Co. 13, The Countess of Salop's Case. But thirdly, as to the stables demised to the others, the action well lies, as if they were the stables of strangers, and not of the lessor; for as to them there is no privity between the plaintiff and defendant, but as to them they are as nothing."
At common law a tenant for life, or for years, or at will, was not liable for waste, but tenants for life or years were made liable by the statute of Marlebridge, 52 Hen. III., c. 23, and by the statute of Gloucester, 6 Edw. 1, c. 5, 2 Inst. 144, 299 Co. Lit. 53a, 53b. Sackett v. Sackett, 8 Pick. 309. A tenant at will was not within these statutes, and it was held that, although a tenant at will might be liable to his landlord in an action of trespass for voluntary waste, no action would lie for permissive waste. Co. Lit. 57a, note. Daniels v. Pond, 21 Pick. 367. Our statutes give an action of waste, or of tort in the nature of waste, against a tenant in dower, by the curtesy, or for life or years, but not against a tenant at will. Pub. Sts., c. 179, §§ 1, 3.
It was early decided that if a tenant at will negligently kept or guarded his fire, whereby the house was burned, this was permissive waste, for which he was not liable to his landlord. The Countess of Shrewsbury's Case, 5 Rep. 13b, was this. The Countess of Shrewsbury brought an action in the case against Richard Crampton, a lawyer of the Temple, and declared that she leased to him a house at will, and " quod ille law negligenter et improvide custodivit ignem suum, quod domus illa combusta full," etc.; "and it was adjudged that for this permissive waste no action lay." Countess of Salop v. Crompton, Cro. Eliz. 777, 784, was an action on the case, and the declaration was that the defendant, being in possession of a house, stable, and three barns, as tenant at will, " tarn negligenter et im-provide kept his fire in the said house; that through default of good keeping thereof the said house, stable, and barns were burnt down," etc.; and it was held " that for the negligent burning, this nor any other action lies." See Y. B. 48 Edw. III. 25, pl. 8.
The reasoning of these old cases is undoubtedly technical, but they were decided with full knowledge that an action lay for an injury to a personal chattel, caused by the negligent keeping of the bailee. Countess of Shrewsbury's Case, ubi supra. It is admitted to be the law that a tenant at will is not liable for permissive waste. Hartnett v. Maitland, 16 M. & W. 257; Moore v. Townshend, 4 Vroom, 284; Coale v. Hannibal & St. Joseph Railroad, 60 Mo. 227.
But it is suggested that these defendants, under our statutes, were not tenants at will within the meaning of the rule; and it is denied that the careless and negligent acts of the defendants, whereby the building was burnt, constitute permissive waste. The defendant's estate, not being created by an instrument in writing, had, under the Gen. Sts., c. 89, § 2, the force and effect of an estate at will only; and it is therefore unnecessary to determine a question which has been somewhat disputed, whether tenants from year to year are liable for permissive waste. The burning of a building through the negligent keeping of a fire by a tenant is by modern text-writers regarded as permissive waste. 4 Kent. Com. 8r, 1 Add. Cont. (8th ed.) 253; Add. Torts, 239; Smith's Ld. & Ten. (3d ed.) 287; Taylor's Ld. & Ten. § 349; Gibbons on Dilapidations (2d ed.) 108, 128; Comyn's Ld. & Ten. 171.