State Ex Rel. Bohon v. Feldstein

Collins, J., delivered the opinion of the Court. Here are six appeals in one record from the sustaining of demurrers in six cases, based on identical facts with different plaintiffs. Before us specifically are the second amended declarations in two cases, the first No. 34, which we will designate as the first case, and the second No. 64, which we will designate as the second case. The declaration in the first case consists of four counts.

The first count alleges that one Marvin Paul Bohon, late of Allegany County, Maryland, deceased, was the father of the equitable plaintiffs, Catherine Marie Bohon, Infant, Martha Rosalie Bohon, Infant, Alma Nadine Bohon, Infant, and Marvin Junior Bohon, Infant, at the time of his death on or about November 18, 1952. The defendant, appellee, Abraham Feldstein, is the owner of an apartment house in Cumberland, Maryland, which he has maintained, offered, managed and rented to the public generally. On or about the 15th day of November, 1952, the said Marvin Paul Bohon, did rent and on the 17th day of November, 1952, did occupy as his residence the second floor west apartment of the said Abraham Feldstein. This second floor apartment was equipped with a gas-fired, manually operated hot water heater, which had been unlawfully and negligently installed in the bathroom of said apartment by the appellee.

The hot water heater at the top had an opening approximately three inches in diameter with integral flanges, designed to be connected with a vent pipe to carry off the odorless, colorless, tasteless and poisonous carbon monoxide gas and other fumes generated by the com ²⁵ bustion of the natural gas burned therein. However, the said gas hot water heater was not connected with a vent pipe, or a chimney, nor were there other means of discharging fumes dangerous to persons present in said premises so that all the carbon monoxide and other fumes or gases were discharged directly into the said resident premises. The said appellee knew that the said gas hot water heater should have been properly vented or connected to a flue or chimney. The gas hot water heater was delivered to the appellee with a printed notice or set of instructions that it must be connected to a flue for a suitable draft, that it was unsafe and inherently dangerous to install said appliance without proper provision for the safe venting and discharge of the said carbon monoxide and other combustion fumes or gases outside of the resident premises, and that carbon monoxide, when allowed to accumulate in closed areas occupied by persons, renders said premises dangerous and unsafe to human life.

This printed notice or set of operating instructions stated that said operating instructions should be hung near the heater, giving warning that extreme caution should be taken that the device be properly adjusted and operated and warning the user to be sure that the hot water heater was connected to said flue. It was then and there the duty of the said defendant to install and maintain said hot water heater in said rental premises in a safe, lawful and proper manner, accompanied by said operating instructions and warning. The said defendant, disregarding his duty in this regard, did offer and rent to the said Marvin Paul Bohon the said second floor apartment in a dangerous, defective and unsafe condition as aforesaid. On or about the 18th day of November, 1952, the said Marvin Paul Bohon, while lawfully occupying said rental premises as tenant of the defendant aforesaid, without knowledge or warning of the necessity of a flue as aforesaid, the absence of which constituted a latent defect in said premises, was then and there caused to inhale a fatal amount of carbon mon ²⁶ oxide gas generated by the unvented, inherently dangerous and unlawfully installed gas hot water heater, directly resulting in his death by asphyxiation in said apartment premises.

(Italics supplied here.) The second count contains the same allegations as to the failure to install the vent pipe to the heater. It also contains the following allegations. The said gas hot water heater was equipped with an adjustable air port or air intake opening, located at the point where the natural gas supply line entered a mixture chamber wherein the gas and air were mixed before entering the burner. The proper combustion of the gas and air mixture depended upon the proper adjustment of the shutter or metal plate controlling the size of the opening of the air port or intake.

The said air port or intake valve is located underneath the burner assembly. When in place it is locked in proper adjustment position by means of a small set screw or nut hidden from ordinary observation. The said gas water heater was delivered to the defendant with a printed notice which contained instructions as to the proper method of installing, adjusting and locking into position said air port adjusting mechanism. The said adjusting mechanism remained in the control of said defendant, and was separate and apart from the manually operated gas burner valve intended for -the use of persons using said gas water heater, and was in such position as not to be known to or in the control of persons turning on or off said heater in ordinary uses.

The said air port or air intake valve was not properly adjusted at the time said apartment premises was rented to the decedent and constituted a hidden defect. That the said landlord or his agents or servants knew or should have known that said air intake was not properly adjusted which caused said burner to generate carbon monoxide gas, a deadly poison. The defendant knew or should have known that it was dangerous and unsafe to install said appliance without proper provision for the safe and secure adjustment of said air port valve and without proper pro ²⁷ vision for venting and discharging the said carbon monoxide gas, which, when allowed to accumulate in said apartment and actually occupied by persons, constituted a latent defect rendering said premises dangerous and unsafe to human life. It was then and there the duty of said defendant to install and maintain said hot water heater in a lawful, safe and proper manner, duly safeguarding the said decedent from said hidden defects.

However, said defendant disregarded his duty and rented the said premises to the said Bohon and permitted the said Bohon to occupy said premises without notice of said hidden defect. On or about November 18, 1952, the said Bohon was caused to inhale a fatal amount of carbon monoxide gas from the said hot water heater resulting in his death by asphyxiation in said apartment. (Italics supplied.) The third count contained the same allegations as to the failure to install the vent for the heater and the improper adjustment of the air intake valve and alleged that such installation was unlawful without obtaining a building permit required by the Building Code of Cumberland, as set out in Chapter 1, Section 3, Sub-section (a), as revised in 1940. The demurrer to that count was overruled and, therefore, that count is not now before us in these cases.

The fourth count made the same allegations as to the lack of the vent for the burner and the improper adjustment of the air port valve and alleged that thereby “the Defendant created, continued and maintained a private nuisance on his said premises,” and that said condition, which constituted a private nuisance, caused the death of the said Marvin Paul Bohon. (Italics supplied.) In the second case the allegations in the first and second counts of the declaration are the same as those in the first and second counts of the first case except that, where in the first count in the first case it was alleged “that the said Defendant knew,” the first and second counts in the second case alleged “that the said ²⁸ Defendant knew or should have known.” The third count, as in the first case, is not now before us here. The allegations of the fourth count in the second case are substantially similar to those in the fourth count in the first case. (Italics supplied.) Demurrers were sustained to the first, second and fourth counts of the aforesaid declarations in both cases but no judgments were entered on the sustaining of the demurrers.

It has been frequently stated by this Court that an order sustaining a demurrer is not a final judgment and, therefore, that appeals therefrom are premature and must be dismissed. O’Keefe v. Scott, 198 Md. 310 , 83 A. 2d 860 , and cases there cited; Hunt v. Tague, 205 Md. 369 , 109 A. 2d 80 . It was said by this Court in the case of Riddell v. Douglas, 60 Md. 337 : “Where the demurrer is to the whole declaration, and the demurrer is sustained, the defendant is entitled to judgment, unless the plaintiff asks leave to amend. If, however, the demurrer is to some of the counts only, and the demurrer is sustained, the plaintiff may amend the declaration, by the addition of other counts, or he may stand on the counts admitted to be good.

Strictly speaking, the defendant is entitled to judgment on the demurrer to the defective counts, but the usual practice is, merely to strike out the bad counts, unless the defendant insists on judgment as to such counts.” Poe on Pleading, Vol. 1, Tiffany’s Edition, page 620, Section 591. On account of the seriousness of these cases we allowed the appellee, after the argument of the cases in this Court, to obtain judgments on the first, second and fourth counts of the declarations and all parties to refile the briefs. We will, therefore, treat the cases as if these judgments were obtained previous to the argument in this Court. None of the counts in the declaration before us allege that there was no contributory negligence on the part of the plaintiff.

In State, Use of Dodson v. Baltimore & Lehigh R. R. Co., 77 Md. 489 , 26 A. 865 , a judgment had been obtained in favor of a defendant for ²⁹ failure to allege that the person injured was using due care at the time the damage was inflicted. It was said in that case: “It is not to be doubted that the Maryland Central Railroad Co., if it were in existence, would be responsible for the injuries alleged in the declaration, unless the evidence should show that it was exempted by some of the causes which excuse a master for injuries sustained by his servant; provided there was no contributory negligence on the part of the deceased. This is an indispensable inquiry for the jury; and it is usual to aver in the declaration, that the person injured was using due care at the time the damage was inflicted. The forms set forth in the Code seem to require this averment as necessary.

Art. 75, sec. 23, form 36. [Code, 1951, Art. 75, Sec. 28, Form 36]. It is not contained in the declaration we are considering; and as the question is presented by the demurrer, we must hold the pleading insufficient.” Poe on Pleading, Vol. 1, Sections 456 and 572; Phil. B. & W. R. Co. v. Allen, 102 Md. 110 , 62 A. 245 . Although it is not alleged in any of the counts before us when the gas heater was installed in the apartment, at the hearing in this Court it was agreed between the parties here that this installation was sometime about the year 1942.

We will consider this conceded fact as if it were included in the declarations. It is said in Restatement of the Law of Torts, Section 356: “CONDITIONS EXISTING WHEN LESSOR TRANSFERS POSSESSION: GENERAL RULE. Except as stated in 357 to 362, a lessor of land is not liable for bodily harm caused to his lessee or others upon the land with the consent of the lessee or a sub-lessee by any dangerous conditions whether natural or artificial which existed when the lessee took possession.” One of the exceptions to this rule is Section 358 (b) that, where “the lessor knows of the condition and realizes the risk involved therein and has reason to believe that the lessee will not discover the condition or realize the risk.” It was said in Sherwood Bros., Inc. v. Eckard, 204 Md. 485 , ³⁰ 105 A. 2d 207 : “The general rule is that the landlord is liable for injuries to persons on leased premises, such as guests or customers of the lessee, only to the same extent as he is to the tenant himself. Accordingly, in the ordinary case, the landlord is not liable for injuries caused by defects existing at the time of the lease except as he may have failed to inform the lessee of defects known to him, and not apparent to the lessee.

Tiffany, Real Property, 3rd Ed., Vol. 1, Sec. 107; Smith v. State, Use of Walsh, 92 Md. 518 ; Sezzin v. Stark, 187 Md. 241, 248 .” (Italics supplied.) Harris v. Lewistown Trust Co. (Pa.), 191 A. 34 ; Tiffany on Landlord and Tenant, (1910 Ed.), Vol. 1, Sec. 86, page 556. The trial judge sustained the demurrer to the first count in the first case for the reason that “An unvented gas hot water heater could not possibly be considered a latent defect. The lack of a pipe connecting the heater to a flue is as apparent to the tenant as to the landlord. The set of instructions that were delivered with the heater did not change the basic law.” As argued by the appellee, a latent defect is one which a reasonably careful inspection will not reveal. 24 Words and Phrases, page 306; Sunasack v. Morey, 196 Ill. 569 , 63 N. E. 1039 ; Cowen v. Sunderland, 145 Mass. 363 , 14 N. E. 117 ; Tiffany on Landlord and Tenant, Vol. 1, pages 562, 563.

The mere fact that there