Beauvais v. Springfield Institute for Savings

• Decision Date: 05 May 1939
• Citation: 20 N.E.2d 957,303 Mass. 136
• Parties: ROSE ANNA BEAUVAIS, executrix, v. SPRINGFIELD INSTITUTION FOR SAVINGS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

303 Mass. 136

20 N.E.2d 957

ROSE ANNA BEAUVAIS, executrix, v. SPRINGFIELD INSTITUTION FOR SAVINGS.

Supreme Judicial Court of Massachusetts, Hampden.

May 5, 1939

March 9, 1939.

Present: FIELD, C.

J., DONAHUE LUMMUS, QUA, & RONAN, JJ.

Landlord and Tenant, Landlord's liability to tenant or his family or his invitee, Heating apparatus. Negligence, One owning or controlling real estate, Violation of law, Independent contractor, Heating apparatus, Contributory, Causing death. Practice, Civil, Judgment. Words, "Use."

Evidence of the relations between the owner of a building containing three stores and a tenant at will of one of the stores who, in addition to paying a monthly rental, performed such janitor services as were necessary respecting an oil burner and heating plant located in the basement under his store and used to heat all the stores, warranted findings that the owner retained supervision and control of the burner for the purpose of seeing that it was installed and maintained in proper mechanical condition, that such undertaking of the owner was not gratuitous and that he was liable for injuries to and the death of the tenant resulting from ordinary negligence in the performance of such undertaking.

Evidence that a defect in an oil burner, which resulted in injury to one employed to do janitor service respecting it while the owner had supervision and control of it, resulted from violation of rules and regulations of the department of public safety and from a substitution of a less effective safety device warranted a finding of negligence of the owner toward the employee.

The facts, that one employed to do janitor work with respect to an oil burner upon opening the door of the burner to see why it would not start by use of the thermostat, was injured by an explosion which occurred, and that use of the burner was in violation of rules and regulations of the department of public safety prohibiting the installation, maintenance and

"use" of unapproved burners, did not require a finding that the employee's injury was due to his unlawful use of the burner, or to contributory negligence on his part.

In an action by an administrator with a count for conscious suffering and a count for causing death, there should be a separate verdict and a separate judgment on each count.

TORT. Writ in the Superior Court dated January 14, 1936. Before Baker, J., verdicts for the plaintiff were recorded, with leave reserved, in the sum of $7,910 upon the count for causing death and in the sum of $18,000 on the count for conscious suffering; and afterwards the judge ordered verdicts for the defendant entered.

C. E. Drapeau, (S.

Saltman with him,) for the plaintiff.

H. P. Small & C.

R. Brooks, for the defendant, submitted a brief.

RONAN, J. The defendant became the owner in June, 1932, of a building consisting of three stores. In the basement of one of these stores was located a central heating plant which furnished heat to the entire building. This store was occupied by the testator, who conducted a drug store. He was a tenant at will, paying a monthly rental, "and in addition performed such janitor services and supervision as was necessary for the heating plant, including setting the thermostat, maintaining the water level, ordering oil, and paying for such electrical energy as was used to operate the plant." This arrangement continued up to the time of the accident. The defendant contracted with one Harrington to install a used burner of a certain type of designated manufacture for a lump sum. The contract was completed on December 12, 1933. The burner was inspected by the manager of the defendant's real estate department to see that it complied with the contract. It was paid for by the defendant on December 18, 1933, and was continued in operation until the accident on March 13, 1934. This burner had been previously used in a church and was too large for the defendant's premises. Harrington removed the high speed motor and put in its place the low speed motor which had been located in another part of this burner; he changed the nozzle, which was adapted to a burner consuming fifteen gallons of oil an hour, to one designed for a burner using two and one half gallons; he eliminated the master control, which was a safety device for stopping the burner when the flow of oil was interrupted or when oil was being fed without being ignited, and substituted for it, in the stack of the heater, an appliance to accomplish the same purpose. There was evidence that the master control, which was placed in the combustion chamber, would act more quickly than a stack control whose operation depended upon the amount of heat generated by the gases escaping to the chimney, but that the stack control could be properly adjusted and timed to furnish an efficient safeguard. The burner actually furnished differed materially from the one mentioned in the contract with Harrington, and the defendant's agent should have discovered this when he inspected the work before paying the bill. The testator soon after opening his place of business on the morning of March 13, 1934, was unable to start the burner by adjusting the thermostat. He went down stairs and opened the door of the boiler; an explosion, caused by the accumulation of gas in the boiler from oil that had failed to ignite, resulted, emitting "a terrible fire," throwing the testator down, and burning him so severely that he died after several days of conscious suffering. Verdicts in favor of the plaintiff for conscious suffering and for death were set aside, leave having been reserved, and verdicts were ordered for the defendant, subject to the plaintiff's exceptions. There was considerable conflict in the testimony but we have narrated the evidence in the light most favorable to the plaintiff, in accordance with the rule established in this Commonwealth in determining the correctness of the action of the trial judge in directing verdicts for the defendant.

The defendant contends that the testator was a tenant at will; that the heating system was a part of the demised premises and was under the sole control of the tenant; that the defendant was not obliged by contract to repair the heater; that if it did install another burner such act was a gratuitous undertaking which might ordinarily entail liability for personal injury if it were shown that the defendant had been grossly negligent, and for death if it were shown that the defendant had failed to exercise ordinary diligence; that in the present case the defendant did not incur liability for the reason that an independent contractor, in whose selection there was no negligence, performed the contemplated work, which was of such a nature that it did not constitute a nuisance or necessarily bring to pass injuries to persons or property if proper precautions were taken.

The jury could find that the boiler and burner, both being located in the basement of the drug store, were parts of a single heating system installed and maintained for the purpose of furnishing a supply of heat not only to the drug store but also to the other stores that comprised the property of the defendant. It is reasonable to infer, in the absence of the terms under which the other stores were let, that, if they were to be occupied, adequate heating must be secured. It is plain that the heating system was maintained not only for the benefit of the testator but also for the advantage of the defendant. It was a matter not only of convenience but of mutual arrangement that the tenant of the drug store, where the thermostat regulating the operation of the system was located, should attend to the heater in accordance with the terms of the contract between him and the owner. Other than paying for the electricity consumed, he could have been found, as stated in the defendant's answers to interrogatories, to have been performing janitor's service incidental to his tenancy relative to the heater. His contract, however, did not obligate him to repair the burner or to maintain it in proper mechanical and electrical condition. Calabresa v. Lynch, 271 Mass. 58 . The jury could find that the defendant had contracted with the testator and with the other tenants to furnish heat to the stores; that in pursuance of this obligation it installed the burner on December 12, 1933, under a contract which required the vendor to furnish for the contract price "a one year service and parts guarantee"; that the vendor, subsequently to the installation of the burner and prior to the accident, had made two service inspections, found the burner working properly, and made no repairs; that the defendant kept a record of complaints concerning its real estate; that there were no complaints made to the defendant with respect to this burner but, if there had been, it would have notified Harrington, who, after remedying the defect, would send a bill showing no charges, as such repairs would come within his guaranty of service; and that, after the accident, the defendant sent for Harrington, who removed the burner, tested it, dried out portions of it that had become damp on account of water used in extinguishing the fire, and replaced it on the property at the expense of the defendant. Such evidence would warrant a finding that the defendant had retained the supervision and control of the burner for the purpose of seeing that it was installed and maintained in proper mechanical condition, and that it did so not as a matter of a gratuitous undertaking but in pursuance of a contract with its tenant which required the defendant to exercise reasonable care and diligence in its performance, Feeley v. Doyle, 222 Mass. 155; Withington v. Rome, 258 Mass. 188; Lischner v. Hahn, 273 Mass. 259; Connery v. Cass, 277...