Andrews v. Leominster Sav. Bank

• Decision Date: 08 December 1936
• Citation: Andrews v. Leominster Sav. Bank, 296 Mass. 67, 5 N.E.2d 50 (Mass. 1936)
• Parties: ANDREWS v. LEOMINSTER SAVINGS BANK (two cases).
• Court: Supreme Judicial Court of Massachusetts

296 Mass. 67

5 N.E.2d 50

ANDREWS v. LEOMINSTER SAVINGS BANK (two cases).

Supreme Judicial Court of Massachusetts, Worcester.

December 8, 1936

Exceptions from Superior Court, Worcester County; Winfred H. Whiting Judge.

Actions of tort by Frederick D. Andrews and Helen E. Andrews against Leminster Savings Bank. The trial judge directed a verdict for the defendant in each case, and the plaintiffs except.

Exceptions overruled.

S Salny, of Fitchburg, for plaintiffs.

C. C Milton, S. B. Milton, and R. C. Milton, all of Worcester, and J. W. Healey and C. D. Bent, both of Leominster, for defendant.

CROSBY, Justice.

These are actions of tort to recover for personal injuries sustained by the plaintiff in the second case, and for medical expenses incurred by her husband, the plaintiff in the first case, as a result of the alleged negligence of the defendant as owner of a dwelling house, in Leominster, in this Commonwealth.

The following facts were stated by counsel for the plaintiffs in his opening to the jury: The rights of the parties arise out of a relationship of landlord and tenant. The defendant held a mortgage on the house and became the owner thereof by a foreclosure sale. The house at that time was out of repair and was not ready to be occupied. A part of the inside was being remodeled. There were front and back piazzas; the latter ‘ started at one side of the house and went around the other side.’ To reach the rear door of the downstairs tenement it was necessary to go up a flight of steps onto the back porch for a distance of ten or fifteen feet. To go to the upstairs tenement from the rear it was necessary to go up the same back steps, and then go up a flight of stairs. The plaintiff Frederick D. Andrews went to the defendant bank and talked with its president with reference to renting the house. His wife also talked with this bank officer. As a result of several conferences between the parties it was agreed that the defendant would rent the house to Andrews, who was to repair it; that the bank would furnish the material necessary to put the house in a suitable and safe condition, and that the defendant would make an allowance on the rent to be paid, and also would pay $2 a month for the work which Andrews performed. The original contract, whereby Andrews was to make the repairs, was terminated in September, 1932, and the bank by its officers agreed that it would thereafter look after the repairs and finish that which was left undone. The bank did in fact make certain repairs, some work was done on the inside of the house, the roof was repaired and some work was done on the front piazza. Thereafter there was no allowance of $2 a month on the rent and the new arrangement was in effect and continued for about two years-up to the time of the accident. On September 30, 1934, in the evening, the plaintiffs were on this back piazza. They went out the rear door together, and the wife turned back and went to the rear door; she then turned and walked along the outside of the back piazza, and at a place where a board was decayed her foot went in and she fell down the stairs and was injured. The board that caused her to fall was in a part of the piazza that the defendant intended to repair. Counsel for the plaintiffs stated to the trial judge that he claimed that the defendant agreed to put the house in a safe condition, that whatever Andrews did was as the defendant's employee and agent, and that the defendant was negligent in failing to make proper repairs. The trial judge ruled, in substance, that the opening of counsel for the plaintiffs did not warrant verdicts for the plaintiffs. In each case he allowed a motion filed by the defendant for a directed verdict in its favor,...