Barrett v. Wood Realty Inc.

• Decision Date: 29 June 1956
• Parties: Winifred BARRETT v. WOOD REALTY Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 660

135 N.E.2d 660

334 Mass. 370

Winifred BARRETT v. WOOD REALTY Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 4, 1956.

Decided June 29, 1956.

John J. Mackin, Boston for plaintiff.

Walter F. Henneberry, Newton Center, for defendant.

Before QUA, C. J., and WILKINS, WILLIAMS, COUNIHAN and WHITTEMORE, JJ.

COUNIHAN, Justice.

This is an action of tort for personal injuries sustained by the plaintiff on June 17, 1951, as a result of a fall in the bathroom of a basement apartment at 228 Kelton Street, Allston, occupied by her as a tenant at will of the defendant. It was agreed that 'the defendant was the owner and was in control of the apartment building in which the plaintiff was a tenant and that the alleged accident occurred in her own bathroom in that part of the premises rented to her.'

The action was tried before a jury on two counts (the second count of the declaration having been waived), the first based on negligence of the defendant in the care and maintenance of the drainage system of the building in which the apartment of the plaintiff was located, and the third count based on negligence of the defendant 'in the care, management, maintenance, operation, supervision or control of the said premises.' The action comes here upon exceptions of the plaintiff to the allowance of a motion for a directed verdict for the defendant and to the exclusion of evidence offered by the plaintiff. There was no error.

The evidence in its aspects most favorable to the plaintiff was as follows: The plaintiff had occupied this apartment since 1945, and at the time of the accident she was a tenant at will. She was employed as a registered nurse and on June 16, 1951, she returned to the apartment about 4:30 P.M. She then observed water coming out under the apartment door. When she entered she saw water coming out of the bathroom through the hall leading to her bedroom. It was foul, filthy and 'messey.' The fixtures in the bathroom were all overflowing. One Costa, the janitor of the building, was called and came almost immediately. He tried without success to stop the flow of water. He then called a plumber who responded within a half or three quarters of an hour. The plumber and Costa then went down into the boiler room in the subbasement where the house main 'lets out to the sewerage.' The plumber took the cap off the main and inserted a 'long, long snake' which they both pushed and 'banged away' at so as to open the main drain from the house. One main from each floor leads to this large main under the building. The 'snake' went in a 'very, very long ways until it got to the end, almost to the sidewalk.' They struck something and pushed it until it gave way and the system began to operate and 'all the water from the bathtub and bowl and everything started to come right through.' That stopped the overflowing in the bathroom.

Costa then returned to the plaintiff's apartment about 11:20 P.M. He went into the bathroom and 'cleaned up some more of the water that was still left around; * * * he used a new mop, bucket and rinser and cleaned the bathroom floor; * * * he put clean water into the bucket and rinsed it out.' He left the apartment between 11:30 P.M. and midnight. After Costa left and before going to bed the plaintiff tried to clean up the living room and straighten it out. She awakened about 3:30 A.M. and she wanted to use the bathroom. She got up and put on the light in the bedroom. After she put on her slippers she walked through the hall to the bathroom. As she got to the threshold she reached in and put on the light. When she started to walk in, her right foot skidded and went under her and she fell down, sustaining injury. '[S]he saw wet paper scattered around; * * * the paper she saw on the floor was wet, slimy, soggy paper like wet toilet paper; * * * 'there were small pieces that were scattered around of paper and like water, not all wet, but there were different areas'; * * * there were areas where you could see pieces of wet paper.'

On direct examination the plaintiff was asked what the janitor said to her just before he left her apartment. On objection the judge excluded the question and counsel made an offer of proof that the answer would be that the janitor said, 'Winnie, your bathroom is all right. It's all right for you to use it.'

In direct examination a witness for the plaintiff who occupied an adjacent basement apartment was asked if occurrences similar to that which had happened on June 16, 1951, had taken place during the three years prior to the day of this occurrence. Upon objection the judge excluded the question. Thereupon an offer of proof was made that at least two times prior to June 16, 1951, the same overflowing happened.

Later the plaintiff was asked if she had a conversation with one Karl D. Wood who collected her rent and who was also the clerk of the defendant corporation. Upon objection this question was excluded. Thereupon counsel made an offer of proof that the answer would be that Wood after the accident said to her, 'Miss Barrett, I'm sorry about your accident. It was all our fault. We will take care of you and see to it that you're taken care of for all your injuries.'

We deal first with the exceptions to the exclusion of evidence. The exclusion of the statement of Costa, to the effect that the bathroom was all right and fit for use, was proper. Although Costa was an employee of the defendant and even if it be assumed that he helped clean up the bathroom, there is no evidence that he was acting within the scope of his employment in doing so or that he was authorized to speak for the defendant. McNicholas v. New England Telephone & Telegraph Co., 196 Mass. 138, 142, 81 N.E. 889; Conti v. Brockton Ice & Coal Co., 295 Mass. 15, 17, 2 N.E.2d 1015; Burwick v. McClure, 318 Mass. 626, 631, 63 N.E.2d 338.

The same is true respecting the exclusion of the statement of Wood to the plaintiff. No authority is shown to permit Wood to make any admission on behalf of the defendant, particularly after the accident had happened. Parsons v. Dwightstate Co., 301 Mass. 324, 327, 17 N.E.2d 197, 118 A.L.R. 1099.

There is likewise no merit in the exception to the exclusion of the testimony of the neighbor to the effect that similar overflowing of water in the bathroom had occurred on at least two occasions prior to this one. There is no evidence of the cause of the earlier occurrences or even of this one. In the absence of evidence to connect the prior overflowing with the one involved in the case at bar, this testimony was properly excluded. Hart Packing Co. v. Guild, 251 Mass. 43, 46, 146 N.E. 238.

We now consider the exception of the plaintiff to the direction of a verdict for the defendant. The first count of the declaration alleges negligence in...