WALSH v. SCHMIDT. [SUPLEME JUDICIAL COURT OF MASSACHUSETTS, SEPTEMBER 7, 1910.] 1. Landlord and Tenant-Duty of Landlord-Condition of Premises. A landlord is under no implied contract or duty to keep premises in a safe condition while they are in the possession of a tenant. 2. Landlord and Tenant-Warranty-Condition of Premises. There is no implied warranty that a house or piazza floor is safe and fit for occupancy at the time of demise, the doctrine of caveat emptor being applicable. 3. Landlord and Tenant-Warranty-Opinion-Injuries. A landlord's statement to a prospective tenant that the house "was good, safe and fit to live in," 18 merely an expression of an opinion, and cannot be made the basis of an action for damages for personal injuries caused by falling through a rotten floor in a back piazza of the leased premises. 4. Landlord and Tenant-Injury to Tenant-Warranty-Evidence. In an action brought against a landlord to recover damages for injuries sustained by a tenant, caused by the breaking through of the floor in a back piazza while the tenant's wife was washing windows, evidence held to be insufficient to show an express warranty of soundness and strength by the landlord. Appeal by defendant from a judgment in favor of plaintiff in an action brought to recover damages for personal injuries sustained by the breaking through of a piazza floor. Affirmed. KNOWLTON, C. J. This is an action of tort, to recover for personal injuries received by the plaintiff while standing upon a chair on the back piazza of a dwelling house, washing a window. One leg of the chair broke through the floor near the wall of the building, and the plaintiff fell. The defendant was the owner of the house which the plaintiff's husband occupied as his tenant. The declaration is for negligence of the defendant in allowing the floor to become rotten and defective. The plaintiff and her husband and his family had lived in the house about five months at the time of the accident. The question before us is whether there was evidence on which the plaintiff could recover NOTE. On the subject of Liability of Land. lord for Dangerous and Defective Condition of Premises, see notes in 7 Am. Neg. Rep. 260, 437, 608; 8 Am Neg. Rep. 6; 9 Am. Neg. Rep. 560, 566. And on the subject of Liability of Landlord for Falling off Porch Causing Injury to Wife of Tenant, see note in 17 Am. Neg. Rep. 54. It is plain that there was no implied contract or duty on the part of the defendant to keep the premises in a safe condition while they were in possession of the tenant. Galvin v. Beals, 187 Mass. 250, 17 Am. Neg. Rep. 550, 72 N. E. 969; Miles v. Janvrin, 196 Mass. 431, 82 N. E. 708, 13 L. R. A. (N. S.) 378, 124 Am. St. Rep. 575; s. c. 200 Mass. 514, 86 N. E. 785. There was no allegation or evidence that there was any fraud on the part of the defendant or any liability for the concealment of a dangerous condition of which he had knowledge. Clogston v. Martin, 182 Mass. 469, 16 Am. Neg. Rep. 462, 65 N. E. 839; Booth v. Merriam, 155 Mass. 521, 30 N. E. 85; O'Malley v. Twenty-Five Associates, 178 Mass. 555, 60 N. E. 387. Indeed, the evidence tended to show, not only that the defendant had no knowledge that the floor was not safe at the time of the letting, but that there was nothing in the appearance of it to indicate that it was unsafe. There was no implied warranty that the house or the piazza floor was safe and fit for occupancy at the time of the letting. Bowe v. Hunking, 135 Mass. 380, 46 Am. Rep. 471; Booth v. Merriam, 155 Mass. 521, 30 N. E. 85; Tuttle v. Gilbert Mfg. Co., 145 Mass. 169, 13 N. E. 465. In the plaintiff's declaration there is an averment "that the defendant expressly warranted the premises to be fit and safe for the occupation of the plaintiff's husband and family." The claim of a right to recover upon this averment presents the only question in the case which is in the least doubtful. Unless there was an express warranty covering the condition which caused the accident, it is plain that there is no cause of action. The testimony of the plaintiff on this point was that the defendant "said he fixed the house all right. It was fit for anybody to live in it." This was before the contract of hiring was made. She testified that he "said he would fix it up to live in-fix it up in good shape." "My husband asked him what kind of a house it was, if it was all right. He said 'Yes.' *** He said it be all right and a good place to live in. He kept talking to my husband. I did not pay any attention." The testimony of the plaintiff's husband was of similar purport. It appeared that both the plaintiff and her husband looked over the house and examined it as much as they chose. They passed over this piazza several times a day during the five months before the accident. The condition of the floor could have been as easily discovered at any time by the plaintiff or her husband as by the defendant. The floor was open to inspection from below as well as from above. Neither the plaintiff nor her husband ever complained to the defendant of the condition of the floor. The rule of caveat emptor applies to the purchase and hiring of real estate, and the question before us is whether this testimony, having reference to the subject and nature of the conversation between the parties, would warrant a finding that the defendant expressly warranted the house to be in perfect condition in all its parts, so that no accident could happen through any imperfection in it, from any proper use that could be made of it. We are of opinion that it would not. The statement was that the house was good, safe and fit to live in. This was of the most general character. It was in the nature of representation and recommendation, or "dealer's talk," which should be treated as the expression of an opinion about the effect of conditions which in general were open and obvious, rather than as a warranty as to the details of construction or soundness. As to these matters the plaintiff and her husband could observe and judge as well as he could. It is not to be supposed that they took the house, relying upon these representations as express stipulations in a contract which made the relations of the parties in this respect entirely different from those of ordinary landlords and tenants We are of opinion that the jury were not warranted in finding that there was an express warranty of the soundness and strength of every part of the house, including the floor of the piazza, to such a degree that it would not give way in any place under circumstances of peculiar and unusual strain upon it. Another question, which has not been argued, is whether, if there were an express warranty in the contract with the plaintiff's busband, this plaintiff could maintain an action of tort under a contract to which she was not a party, for an accident that occurred five months afterwards, when the defendant was under no legal obligation to keep the premises in repair. The case differs materially from Farrell v. Manhattan Market Co., 198 Mass. 271-274, 21 Am. Neg Rep. 142, 84 N. E. 481, 15 L. R. A. (N. S.) 884, 126 Am. St. Rep. 436. Upon this part of the case we express no opinion. The exceptions must be sustained, and under St. 1909, c. 236, the entry must be: Judgment for the defendant. CITY OF RADFORD v. CLARK. [SUPREME COURT OF APPEALS OF VIRGINIA, JANUARY 25, 1912.] 113 Va. 199. 1. Municipal Corporations-Personal Injuries-Blasting. A municipal corporation, although not authorized by its charter or the general laws of the State to operate a rock quarry within its corporate limits, is not liable to a traveler injured when her horse took fright at blasts set off by agents of the city in a quarry near the highway, where rock was being obtained for use on the streets. 2. Highways-Blasting-Defect. Blasting conducted by municipal employees in a rock quarry located 65 feet from a street, is not a defect in the highway. 3. Municipal Corporations-Blasting-Fright of Horse-Injury. The fact that a municipality permitted its employees to discharge blasts in such a manner as to constitute a public nuisance, in a rock quarry, located 65 feet from the highway, does not render it liable to a traveler who was injured in consequence of her horse taking fright at a succession of blasts, where the blasting was not done in the performance of a duty imposed upon the municipality by law. 4. Municipal Corporations-Ordinance-Blasting on Private Property. A city cannot be held liable for its failure to pass an ordinance to prevent or safeguard the firing of blasts in a rock quarry 65 feet from its streets and upon private property. 5. Appeal-Demurrer-Final Judgment. The Supreme Court of Appeals, on reversing the judgment of the Circuit Court and sustaining a demurrer to the declaration, will enter a final judgment where, on the presumption that the plaintiff made the strongest presentation of her case which the facts permit, it could not be bettered if leave were given to amend. Error to the Circuit Court of Montgomery County, to review a judgment rendered in favor of plaintiff in an action brought to recover damages caused by her horse taking fright at a succession of blasts set off by defendant in a quarry located near a public street. Reversed. NOTE. On the subject of Liability for Damages Caused by Blasting, see notes in 7 Am. Neg. Rep. 484; 11 Am. Neg. Rep. 170. And on the subject of Liability of Municipal Corporation for Horses Taking Fright at Noises, see notes in 6 Am. Neg. Rep. 84; 21 Am. Neg. Rep. 445. And on the subject of Liability of Municipal Corporation for Personal Injuries, see note in 12 Am. Neg. Rep. 84. For plaintiff in error-Harless & Colhoun, and H. C. Tyler. For defendant in error-Longley & Jordan. CARDWELL, J. The declaration in this action, brought by Mrs. Mollie P. Clark against the city of Radford, consists of five counts, which, after setting out that the defendant is a municipal corporation chartered by the Legislature of Virginia, and charged with the duty of keeping its streets in a reasonably safe condition for use of the public, alleges that said defendant city was on the day of September, 1909, through its servants and agents, blasting with powder and other explosive material in, and getting out rock for use on its streets from a rock quarry, at a distance of 65 feet from a street of the city known as Grove avenue, and that, while the city was so engaged in blasting on the date named, the plaintiff was driving along said street and within 75 feet of the point of the blasting, and without knowledge thereof on her part, when a succession of blasts were set off, frightening her horse, causing it to become unmanageable and suddenly to wheel around in the street, throwing plaintiff violently upon the ground, whereby she was seriously injured, and her buggy and harness destroyed. The neglect of the city to perform its duty of keeping its streets, and particularly Grove avenue, in reasonably safe condition for the use of travelers thereon, is alleged in the five counts in plaintiff's declaration as follows: The first count charges a failure to give warning of its intention to put off the blasts; the second charges a failure on the part of the city to cover its blasts; the third charges. the employment by the city of unskillful, careless, and negligent servants; the fourth merely alleges damages to the buggy and harness; and the fifth combines the negligence alleged in the first, second and third counts and practically charges negligence on the part of the city in maintaining or failing to prevent a nuisance, resulting in injury to the plaintiff. The defendant city demurred in writing to the declaration and each count thereof, which demurrer was by the court overruled, whereupon the plea of not guilty was entered and issue joined; and at a subsequent term of the court a trial by jury was had, resulting in a verdict and judgment against the city for $500 damages in favor of the plaintiff with interests and costs, to which judgment this writ of error was awarded. Of the eight assignments of error, we find it necessary to consider |