Clapp, Francis and Stanton. The opinion of the court was delivered by Clapp, S.j.a.d.
This action was brought by a tenant's assignee against the landlord to recover damages to the assignee's goods, caused by leakage from an interior pipe carrying rain water off the roof of the premises. Further, see 34 N.J. Super. 142 (App. Div. 1955). The principal point on the appeal was raised by defendant on its motion for dismissal, made at the close of plaintiff's evidence, namely, was there proof of negligence warranting the submission of the case to the jury? The motion was denied, and the jury later brought in a verdict of $5,283.71. Defendant appeals, presenting certain other questions in addition to the point stated.
There was evidence from which a jury could properly have found the facts herein stated. Defendant, the owner of a six-story loft building in Union City, had rented to the plaintiff the loft on the second floor. When rain water drained off the roof, it passed first through a 4" copper pipe 10' long, which was attached to the roof. Nearly the full length of this copper pipe was inserted, as an arm in a sleeve, into an iron pipe six inches in diameter, made up of sections six feet long, which were screwed together and which extended through the six-story building into a sewer in the street. A few days before the leakage, the top section of the iron pipe, or the section next to the top one, was replaced by a pipefitter at the request of the landlord. Defendant has not raised any question here (or below) as to its responsibility for the pipefitter's work, and we therefore do not consider the point. Cf. Restatement, Torts , § 420.
The leak, which caused the damage, occurred following a heavy rain. After the damage had been done a plumber, inserting a "snake" in the iron pipe, drew up paper, twigs and "all kinds of debris" which seem to have lodged in the pipe at about the foundation wall of the building, some
18 1/2 feet from the sewer. It could be inferred that the pipe was clogged at that point by the debris and that the rain water from the roof, collecting in the pipe, had filled the full length of the pipe from the point stated, to the open sleeve at its top -- that is, to the place where the copper pipe entered it. The leak came at that place. A simple calculation demonstrates that it would not have taken a great many gallons of water to fill this six-inch pipe.
The whole case is predicated on the fact that the connection between the copper pipe and the iron pipe was not tightly caulked, soldered or threaded, and that when the landlord replaced the section of iron pipe referred to, it should, according to recognized standards, have seen to it that this joint was made water tight. An expert witness for the plaintiff testified that it looked as though some one had placed some tar around the joint, but had done so in such a manner that one could put his finger into the joint; "it was open." The plumbing code of Union City (we deal later with the question whether it is admissible in evidence) provides
"Inside leaders must be made of cast iron * * * with roof connections made gas and water tight by means of heavy lead or copper drawn tubing * * * caulked or screwed into the pipe."
No claim is made that the defendant was under a duty to repair the pipe. But cf. Devine v. Lyman , 270 Mass. 246, 169 N.E. 908 (1930), and 52 C.J.S., Landlord and Tenant , § 423, p. 92, at note 9, as to a landlord's liability respecting drainpipes under his control. On the oral argument defendant relied upon Bauer v. 141-149 Cedar Lane Holding Co. , 24 N.J. 139 (1957), and the assumption seems to have been made (and not controverted) that the landlord had voluntarily and gratuitously made the repair referred to. We will deal with the case on that basis. The first point in the case therefore turns on the application of Bauer to the circumstances here.
It is elementary that a volunteer must act with due care. The principle recurs in all fields of negligence law.
See, for example, La Brasca v. Hinchman , 81 N.J.L. 367 (Sup. Ct. 1911); War v. Mazzarella , 137 N.J.L. 736, 737 (E. & A. 1948); Bascho v. Pennsylvania Railroad Co. , 3 N.J. Super. 86, 92 (App. Div. 1949). It might be observed, for example, that in one such field (where a nuisance is predicated upon negligence in the building of a sidewalk voluntarily) there is a line of authority relieving the volunteer of liability unless he creates a different or greater danger. Halloway v. Goldenberg , 4 N.J. Super. 488, 490 (App. Div. 1949); Snidman v. Dorfman , 7 N.J. Super. 207, 211 (App. Div. 1950); Longi v. Raymond-Commerce Corp. , 34 N.J. Super. 593, 600 (App. Div. 1955); cf. McHugh v. Hawthorne B. & L. Assn. , 118 N.J.L. 78, 82 (Sup. Ct. 1937). But to the contrary, see the views expressed by Cardozo, C.J., in Marks v. Nambil Realty Co. , 245 N.Y. 256, 157 N.E. 129 (Ct. App. 1927) (dealing with the landlord's liability to a tenant for negligence in gratuitously repairing a stairway).
In Bauer , a case in which a landlord voluntarily made repairs in the leased premises, the Supreme Court put on a sound footing our law respecting volunteers. The court there held that the controlling test is the familiar standard of due care, and it rejected restrictions attached by the Restatement, Torts , § 362, 365. The Restatement would apparently deny the tenant any recovery unless the landlord induces the tenant to rely on the sufficiency of repairs made by him or unless as a result of the repairs, the premises have been made more dangerous. In Bauer an attempt was made to hold the landlord for "not doing enough" (Bauer, supra , 24 N.J. , at page 149) after he had set out gratuitously to rectify a situation and to that end had "in good faith" (Bauer , 42 N.J. Super. 110, 120 (App. Div. 1956)) done a considerable number of things. The Supreme Court held that the landlord had not, through his ...