The diligence of the counsel for the plaintiff has not shown us any case in which it has been held that a tenant at will is liable to his landlord for injuries occasioned by his negligence in kindling or keeping fires in stoves, fireplaces, or chimneys intended to be used for heating the premises. Such a case is presented in Scott v. Hale, 16 Maine, 326, but the defendant had a verdict. The degree of care which the ruling at nisi prius required was that of " a discreet, prudent, and careful man in the possession of his own premises." Of this the court say: " We think this was a most liberal instruction in favor of the plaintiff. But we forbear now to go more minutely into the discussion of questions argued, not because they have not occupied our attention, for they have." The verdict was set aside on other grounds.
In the case cited of Parrott v. Barney, Deady, 405, S. C. on appeal, 1 Sawyer, 423; the tenancy was from year to year, and the damage was from explosive substances stored in the building. There is nothing in United States v. Bostwick, 94 U. S. 53, or in Robinson v. Wheeler, 25 N. Y. 252, that decides that a tenant at will is liable to his landlord for the burning of the building let, or caused by negligence in guarding a fire kindled for the purpose of heating the building.
The law of negligence has been largely developed in recent times, and it is argued that there is no sound reason why it should not be applied in the same manner to real property as to personal, and to tenancies at will as well as to tenancies for a term. It may well be doubted whether the existing condition of the law of negligence is altogether satisfactory, and whether it would be wise to establish an unlimited liability to his landlord, on the part of every tenant at will of real property, for every injury occasioned by any act of negligence of himself or his servants, in the use of the property. However this may be, we do not feel at liberty to overturn long-established rules of law governing real property.
We are not in this case required to consider the consequences of the negligent setting or guarding of fires, set for other purposes than such as are necessary to render the tenement fit for occupation, and in other places than those constructed or intended for the use of fires in heating the premises let. It is competent for landlords and tenants to make in writing any stipulations they see fit. When there is no writing, and the tenant takes the precarious estate of a tenancy at will, we think it has been generally understood that the tenant is not liable for the burning of the tenement let, occasioned by his negligence or that of his servants in the keeping of fires set for the purpose of heating the premises, and in the place designed for that purpose, so that they may be fit for occupation. The fact that no action can be found to have been maintained for this cause is strong evidence of this. The ancient law has been acquiesced in, and, consciously or unconsciously, the cost of insurance to the landlord, or the value of the risk, enters into the amount of the rent. We think on this part of the case the exceptions should be sustained.
If the law were to be established anew, it might, with much force, be contended that the test of the liability of the defendants in this case ought to be the same as to all of the property destroyed; but it would deserve consideration whether, in such a case as this, it would not be more reasonable to hold the defendants liable only for gross negligence amounting to reckless conduct.
The existing law has, however, introduced many distinctions. A bailee of chattels for hire is liable only for the want of ordinary care; but if the bailee promises to return the chattel absolutely, then he is liable, although the chattel is destroyed by inevitable accident. Harvey v. Murray, 136 Mass. 377.
The obligation of tenants under a written lease to their landlords, except so far as statutes have imposed arbitrary liabilities, are determined by the construction of the lease. But landlords are at common law exempt from many liabilities towards their tenants for the condition of the premises, which they are under towards strangers who are lawfully upon the premises while in their possession. Bowe v. Hunking, 135 Mass. 380; Woods v. Nau7nkeag Steam Cotton Co. 134 Mass. 357.
Disregarding the use of fire in clearing land and for other agricultural purposes, and confining ourselves to the case at bar, which is the use of fire in stoves for the purpose of heating the building, it is manifest that, in many cases, prudence might require a reconstruction of the chimneys and the purchase of new stoves. In many cases it would be difficult to determine how far the bad condition of the premises contributed to the injury occasioned by the fire. We think the reasonable rule is that if landlords would protect themselves from the mere negligence of their tenants, they should take a written lease, with proper covenants; and that a tenant at will is not liable to his landlord for the mere negligence of himself or his servants in kindling or guarding fires in stoves or chimneys for the purpose of heating the premises; but that he is liable for wilful burning, and also for such gross negligence as amounts to reckless conduct. By the terms of the report the verdict is to be set aside and a
New trial granted.1
1 But see Robinson v. Wheeler, 25 N. Y. 252 (1862), p. 259, where Wright, J., says: "The judge charged the jury that the plaintiff could recover for the wood-shed without showing that the defendant set fire to it on purpose, if it was burned through his negligence. The tenant was answerable for waste of the premises through his negligence ; and although it was argued in the complaint that the defendant wrongfully set fire to and destroyed the wood-shed, and it turned out from the proof that he had negligently set fire to it, and it was burned up, the plaintiff could recover. That was this case. It was the same kind of waste, the complaint arguing that it was committed wrongfully, and the proof showing that it was done negligently." - Ed.