Little v. Lynn & Marblehead Real Estate Co.
| Decision Date | 13 September 1938 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | LILLIAN A. LITTLE v. LYNN & MARBLEHEAD REAL ESTATE COMPANY. |
April 7, 1938.
Present: LUMMUS QUA, DOLAN, & COX, JJ.
Negligence, Fire One owning or controlling real estate, In storage of inflammables. Fire. Landlord and Tenant, Nuisance, Liability of landlord to third person. Nuisance. Inflammable Substance.
The mere fact that a fire originated in a factory was not evidence that it was started by the owner or was caused by negligence on his part.
An action could not be maintained for losses caused by a fire of an unknown origin in a factory of the defendant being communicated to a building of the plaintiff in the absence of evidence showing that a failure to confine the fire to the defendant's premises was due to his negligence, or that a condition of the defendant's premises that was unlawful or was due to his negligence contributed to the fire's being so communicated, or that the defendant negligently failed to provide adequate means for extinguishing the fire.
That the owner of a factory was negligent in failing to prevent a fire therein of unknown origin being communicated to a neighbor's building could not properly be found where it did not appear that he had notice of the fire before it caused damage to the neighbor's building.
The mere facts that a tenant of a factory building without a permit required by G. L. (Ter. Ed.) c. 148, Section 13, stored inflammables on a portion of the premises in his possession and control which was a cause contributing to communication of a fire in the factory to a neighbor's building, did not warrant a finding that a consequent loss to the neighbor was due to negligence of the owner of the factory, where it did not appear that he knew that such inflammables were on the premises; nor was he liable to the neighbor for the nuisance so maintained by the tenant.
Failure of the owner of a factory to require an independent contractor to work overtime to complete repairs of a sprinkler system which resulted in the system not being in working order so that it could prevent a fire on the premises being communicated to a neighbor's building, could not properly be found to constitute negligence on the part of the owner of the factory where it did not appear that he knew of the presence of inflammables on the premises or other particular source of danger.
TWO ACTIONS OF TORT. Writs in the Superior Court dated February 19, 1935.
The actions were tried together before F. T. Hammond, J.
J. W. Sullivan & J.
F. Doyle, for the plaintiffs, submitted a brief.
P. Shuebruk, (C.
C. Cabot with him,) for the defendant.
These are two actions of tort which were tried to a jury. At the close of the plaintiff's evidence in each case, the judge allowed a motion of the defendant for a directed verdict in its favor on each count of the declaration, and reported his action for the consideration of this court. Under the terms of the report in each case, if the action was correct judgment is to be entered for the defendant; otherwise a new trial is to be ordered.
The evidence in its aspect most favorable to the plaintiffs would have warranted the jury in finding the following facts. On January 30, 1935 the plaintiff Little was the owner of a parcel of land and a building thereon in the city of Lynn, in which building was stored certain personal property of the plaintiff corporation. The defendant was the then owner of a factory building which adjoined that of the plaintiff Little. The defendant's building was equipped throughout with an automatic sprinkler system. During the night of January 28, 1935, the fire department of the city of Lynn, having been informed that there was a leak in the sprinkler system in the defendant's building, in accordance with its usual practice shut off the water supply to that building. About 8 or 8:30 A.M. on January 29, the chief of the fire department notified the defendant's agent, Farquhar, who was in charge of the building, that the water had been shut off and that the sprinkler system needed to be repaired "before the water could be again turned into the pipes." Between eleven and twelve o'clock in the forenoon of the same day, Farquhar instructed R. T. Pender, Inc., a corporation carrying on a plumbing and steam-fitting business, to make the necessary repairs. At 1 P.M. an experienced steam fitter and helper employed by this corporation proceeded to make repairs. They suspended their labors at 4:30 P.M., the regular hour for ceasing work under the rules of their employer, without having completed the necessary repairs. The work could have been completed in four to five hours; and, had the workmen continued their labors, the employer would have paid them for the overtime, which would have been charged to the defendant.
About 4 A.M. of the next day, January 30, fire was discovered in the defendant's building, and shortly after the arrival of the fire department there was an explosion which wrecked the building. The fire spread to the building of the plaintiff Little and damaged it substantially, as well as its contents belonging to the plaintiff corporation. There was evidence from which it could have been found that, had the defendant's sprinkler system been in working order, the fire would have been confined to its premises. At the time of the fire, parts of the defendant's building were occupied as tenants by two corporations which carried on the business of manufacturing and covering wooden shoe heels. In the course of their business they used and stored various materials or fluids of an inflammable nature, such as celluloid, naphtha and benzine. One of these tenants did not have a permit from the city council for the storage of inflammables, but its premises were regularly inspected by the fire department. The fire department assumed the existence of such a permit or license, and would not have permitted the use of the inflammables unless the building was equipped with an adequate sprinkler system. The defendant's agent, Farquhar, was familiar with the management of real estate and with the operation and efficacy of sprinkler systems. He was aware at the time of the fire that there was a commission in the city of Lynn which supplied watchmen for buildings in times of emergency or otherwise, and of the availability of watchmen. The defendant kept no watchman regularly, and, on the night preceding the fire, its elevator operator, who also acted as a "handy man," went home at 5 P.M. and at 10 P.M. returned and attended to the fire under the boiler. This was a regular procedure. Farquhar made no inquiries as to the progress of the repair work being done on the sprinkler system, and at the close of the business day preceding the fire went home. Up to the time of the fire no information was sought by or furnished to him as to whether the work had been completed. "When the city firemen first went to the [defendant's] building on the night of January 28th [sic], they found a man walking around in there and some time after the fire the remains of a human being were found in the building and a man employed in one of the wood heel working concerns, who were tenants in the building, was...
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