Baldassare v. Crown Furniture Co.

• Decision Date: 04 May 1965
• Citation: 349 Mass. 183,207 N.E.2d 268
• Parties: Pasquale B. BALDASSARE, Administrator, v. CROWN FURNITURE CO., Inc. Pasquale B. BALDASSARE, Administrator, v. Dora FAGELMAN. BRICK BAR CAFE, INC., et al. v. CROWN FURNITURE CO., Inc. Lawrence DI ROCCO et al. v. CROWN FURNITURE CO., Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 268

207 N.E.2d 268

349 Mass. 183

Pasquale B. BALDASSARE, Administrator, v. CROWN FURNITURE CO., Inc.

Pasquale B. BALDASSARE, Administrator, v. Dora FAGELMAN.

BRICK BAR CAFE, INC., et al. v. CROWN FURNITURE CO., Inc.

Lawrence DI ROCCO et al. v. CROWN FURNITURE CO., Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 3, 1965.

Decided May 4, 1965.

John H. Fletcher Calver and John F. Finnerty, Boston, for defendants.

Francis V. Matera, Boston (David B. Cushman, James Zafarana, and Thomas B. Shea, Boston, with him), for plaintiffs.

Before WILKINS, C. J., and SPALDING, CUTTER, SPIEGEL and REARDON, JJ.

CUTTER, Justice.

These four actions of tort seek to recover (a) for injuries and property damage suffered by certain plaintiffs and (b) for the death and alleged conscious suffering of Baldassare's intestate, Louis Baldassare (Louis), because of the collapse of a building in East Boston owned by Dora Fagelman (Dora) and leased by Crown Furniture Co., Inc. (Crown). The cases were consolidated for trial and referred to an auditor (findings not final). There were verdicts (a) on the statutory death claim counts, based on negligence and nuisance, for the administrator of Louis' estate against Crown and against Dora; (b) for Brick Bar Cafe, Inc., and others against Crown; and (c) for Lawrence Di Rocco and Richard Di Rocco against Crown. Verdicts for Crown and for Dora were directed on counts by the administrator based on Louis' alleged conscious suffering.

Crown and Dora present exceptions (a) to the denial of motions to recommit the auditor's report, to strike that report, and to reading the report to the jury, and (b) to the denial of their motions for directed verdicts on the counts other than those relating to Louis' alleged conscious suffering. Baldassare presents exceptions to the judge's action in directing verdicts for Crown and Dora on the conscious suffering counts. The evidence in stated in its aspect most favorable to the plaintiffs.

FACTS APPLICABLE TO ALL FOUR CASES.

A four story brick building at 228 Meridian Street, East Boston, was owned by Dora on February 20, 1958, the date of the accident. In an answer to an interrogatory she admitted that she then controlled the building. She, in her name as owner, carried fire and liability insurance on the building. The building was assessed to her for taxation.

The 'premises were, in their entirety, leased to Crown * * * under an oral lease, whereby the tenant was responsible for all building repairs.' The tenancy began prior to September, 1956, and continued to the date of the accident.

Crown used the building as a retail furniture store. Crown's officers were Sidney Fagelman, president; Herbert Starr, treasurer, who managed the furniture business; and Barney Fagelman (Barney), Dora's husband, clerk. Sidney was Barney's son. Herbert Starr was Barney's son-in-law. The three men were Crown's only stockholders.

Above the basement were three floors. 'Above the third floor there was space which may be referred to as a loft but which was not intended for usual occupancy purposes.' In this area, two trusses extended from the east 'wall to the west wall which were intended to support the weight of the roof. * * * The north truss was parallel to the north wall and was about 17 feet from' it. A 'substantial part of the weight of the roof rested upon the trusses which through the ends of the trusses transferred the weight to the east and west walls.'

During September, 1956, a roof leak developed. It was found that a 'member' of the north truss was missing and 'that * * * damage to the brick work of the east wall * * * supporting the truss was caused by effervescence and loosening of the cement joints and a settling of the roof.'

Barney engaged one Archibald, a licensed builder, to make the necessary repairs. 'Archibald applied for a permit as the duly authorized representative of the owner * * * to do the work.' The Boston building code 'requires that all applications for repair be signed by an authorized agent of the owner.' The city building department approved Archibald's plans. He proceeded to replace the missing member but 'failed to complete the repairs to the loose * * * mortar between the bricks, leaving it in an effervescent condition.'

'On January 8, 1958, the police received notice of a dangerous condition' of the building. The street was blocked off and Starr summoned Archibald, who 'started to shore up the fractured truss * * * which had failed pushing out a bulge in the brick front' of the Meridian Street side of the building. Under the direction of representatives of the building department, 'various jacks were used to shore up the building and remove the immediate danger of collapse.'

On January 8, 1958, also, 'Barney * * * received and Dora * * * was informed of a notice from the [b]uilding [d]epartment that the building * * * was unsafe '* * * so as to endanger li[f]e and * * * [was] a common nuisance * * * .' Thereafter an application, in the name of the owner as required by the [Boston] [b]uilding [c]ode * * * for a permit was * * * filed by representatives of' a wrecking company. On January 10, a permit to '[d]ismantle fractured area of building and make safe' was granted. ¹

Barney engaged one Rugo, a licensed engineer, to draw plans for permanent repairs. 'Rugo, as the authorized representative of the owner, conferred with Inspector Gleason and' the building commissioner regarding the repairs to the front wall and truss. '[B]ecause of the dangerous nature of the job and because of his expressed distrust of * * * [Archibald's] qualifications,' Gleason insisted that Rugo sign an affidavit required by the building code (that the plans complied with the code) 'as a condition to the issuance of the permit.' Rugo 'under his contract with' Crown supervised the repairs. Archibald was low bidder. 'An application for a permit for Crown' was filed by Rugo to 'repair wood roof, trusses and replace front wall and exterior walls as shown on plan.' A permit was issued on February 5, 1958.

On February 10 and 12, 'Gleason complained to both Archibald and Rugo about the conduct of the work and on February 13, 1958, he stated to Starr and Archibald that unless conditions improved he was going to obtain a stop order.' Starr, who had advertised for February 22 an 'opening sale' for Crown, was pressing 'Rugo and Archibald to speed up the work and asked them both when the jacks could be removed.' On February 19, Gleason, apparently in Starr's presence, told Rugo by telephone 'that he, Gleason, would never personally order the jacks removed' and that this was Rugo's 'responsibility but that even when * * * [Rugo] gave the order to remove the jacks, he, Gleason, forbade the removal * * * until * * * [Gleason] had examined the completed work. Gleason left the premises at about 1:45 P.M. on' February 19, when 'about 70 jacks were in place.' The next day 'Gleason * * * [again] ordered * * * [Rugo] not to permit the removal of the jacks until after he, Gleason, had inspected the completed work.' Gleason did not visit the building again until after its collapse on February 20.

'On the afternoon of February 19th, Rugo authorized the romoval of all pipe jacks in the basement, first [floor] and second floor and some of the pipe jacks on the third floor which Archibald demonstrated were * * * bearing no weight.' One McDonald, an employee of Crown, with a truck and helper, 'removed 35 or 40 jacks from the basement, first and second floor of the building. On February 20th, he and his helper removed more jacks from the third floor.' There was effort 'to get the job finished.' He 'used a ten pound sledge hammer to knock out some of the jacks causing loose timbers over the jacks to fall to the floor.' Archibald helped 'with one stubborn jack.' The big screw jacks under the trusses were never removed. He took 'about 100 jacks to' the supplier of the jacks. When he left the building about 4:30 P.M. 'about 15 pipe jacks were still in place on the third floor.'

At about 4:40 P.M. on February 20, 1958, the entire roof collapsed after failure of the trusses. Pressures against the walls caused the upper portions to be knocked outward. '[A]n avalanche of brick fell onto Meridian Street' and on neighboring property.

A consulting engineer testified (1) that in his opinion the cause of the collapse was the faulty design of the truss, the repairs made, and poor workmanship, (2) that if all the jacks had been left in place, the building would not have collapsed, and (3) that the wall would have collapsed whenever the jacks were removed. Gleason testified that there were three causes, including removal of the jacks. The auditor found that, among other causes of the collapse, Crown's employees, 'in their haste to * * * [resume] commercial use, removed * * * jacks without affording adequate opportunity for inspection,' and that they 'acted contrary to the advice of the' building department inspector. He concluded (1) 'that there were contributing causes for which Crown, Archibald, and Rugo are answerable,' (2) that Dora 'had no part in the construction,' and (3) that he could not find 'that any other party was acting as her agent.' He found generally for Dora in the actions against her.

LOUIS' ALLEGED CONSCIOUS SUFFERING.

Louis, eight years old, was proceeding along Meridian Street with his friends, Richard and Lawrence Di Rocco. The auditor found that '[b]ricks from the east wall of the [b]uilding * * * knocked * * * [Louis] to the sidewalk.' Although the auditor found that Louis 'showed no signs of consciousness * * * after the accident,' the following additional testimony was introduced at the trial. Richard Di Rocco testified that he heard Lawrence yell, 'The sky is falling.' The witness then proceeded, '[W]e see everything fall--we started to run to get away from it--then I got hit * * * I saw Louis fall down against the wall * * * I saw Louis getting...