The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1896-04-14
Demurrer IS SUSTAINED
Opinion Of Judge BuffingtOn in Bower
TreSpaSs Suit.
NhY THE ACTION MAS BROUGHT
1t Is Alleged That Members Of the Boyer
Family Died Because of the unsan-
itary Condition Of the House
They Lived in.

City Solicitor Torrey yesterday re-
ceived an opinion from Judge Butiing-
ton of the United States circuit court
in which the defendants demurrer in
the trescass suit of Harriet l.. Boyer
and others agains. w. Gibson Jones.
of this city, and Colonel Meredith l..
Jcnes, of New York. is sustained.
The Boyer family occupied IA house
rented from the defendants. The faith
er of the family died of typhoid fever:
the mother died soon afterward, and
one or two of the children also sue
cumbed to the dread disease. Ii was al
legged that the unSanitary condition of
the premises had all to do with breed
ing disease and a suit for large dam
ages was brought against the defend
ants. Attorney l.. L. Wedeman repre-
scented the Boyer children. City Solic-
itor Torrey represented the defendants
and incidentally the city and he filed
a demerrer to the declaration of the
plaintiff. The opinion of Judge Buff
fingtOn sustaining the demurrer is as
follows:
THE JUDGES OPINION.
This is a demurrer to the plaintiffs
declaration on three grounds. First,
that the ordinances of the city of
Scranton and the rules of the board of
health are not properly pleaded; sec
Ondly, assuming they are properly
pleaded, they do not sustain plaintiffs
case; and lastly, that plaintiffs decla-
ration does not set forth a valid cause
of action.
'The grounds upon which plaintiffs
seek to recover are not set forth in the
declaration with clearness; possibly
they may be inferred or gathered from
1t to be that defendants owned house
to plaintiffs parents as dwelling: that
there was a privy vault on the prem
ises; that by the ordinances and health
rules OF the city of Scranton q connec-
ton was required between the vault
and the city sewer; that no such con-
nectiOn existed and defendants leased
the premises to plaintiffs parents, who
were ignorant of the lack of such
connecticut that by reason of the negli-
gence of the defendants i'm failing to
connect with the sewer and by main
tanning and keeping privy vault with
a discharge and leakage on the prem
ises. the father of the plaintiffs sick
ened and died on the premises during
his occupancy.
"WaiVing for present purposes all
question as to the ordinances being
properly pleaded and considering them
as before US In eXtenso, we still think
the demurrer must be sustained.
NOT OF ITSELF UNLAWFUL.
"A cess pool upon city lot is not in
itself unlawful, Philadelphia VS.. Provi-
dent Trust Co., 1872 Pa ST. 224, Wunder
vs.. Mclean, 1874 Pa. St. 339: improper
use of it is what gives it an unlawful
character. The ordinances in question
do not prohibit their use Except in cer-
tain locations not pertinent to the pres
ent case) but simply provide for their
regulation under certain conditions. We
have been referred to no ordinance
which makes a sewer connection for
the cess pool on the premises now con-
cerned obligatory. There was. there
fore, no breach per Sc of law or duty
on the landlords part in renting the
pI emises with the cess pool upon them.
The lease executed provides that the
lessee shall keep the premises In good
repair remove from them all accumu-
lations of filth of every kind and keep
the privy neat and clean during the
term. Such being the case, the duty
rested upon the tenant, as between him
and the landlord, of keeping the vault
In proper order And apart from his
contract this would seem to, be his i'm
piled duty as well. Fow VS.. Roberts,
10S Pa. ST. 492. II, therefore. the sick
ness and death of plaintiffs father re-
suited from the contents of the vault
flowing out upon the surface, the in
jury was the result of a failure on his
part to perform his bounden duty of
seeing that the vault was cleaned out
and did not overflow.
ARE VAGUE AND GENERAL.
While the declaration alleges the
lease was 'fraudulently and deceitful-
ly' made, these allegations are of such
vague and general nature and there
is such an absence Of specific fact and
detail that as bearing on the question
of fraud we are justified in disregard
ing them. Beech's Modern Equity
Practice sec. l01 Amber vs.. Choteau,
lO7 Y. $. $50.
That no injustice Is done the plain
| tiff by this construction will appear
| from the fact which was stated by
counsel at bar that the lease was ori-
ginally made in the fall and after the
| family lived in the house until the first
| of April following, the premises were
| again released by the instrument of
which copy was filed. Manifestly, If
there had been any fraud or deceit in
the first lease. plaintiffs would have
| discovered it before the second was en-
| tered into.
I'm addition thereto the second lease
contained 20 stipulation that the prem
| ises We're In Il tenantable condition and
there is no implied covenant at COM
mon law by the landlord that such Is
the case. Doyle VS.. Union Pacific r. r.
147 u. $. 4OS, Moore VS.. Weber, II Pa.