Berger v. Stoner

• Decision Date: 12 June 1970
• Citation: 357 Mass. 659,259 N.E.2d 774
• Parties: Maureen Ann BERGER et al. v. William STONER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 774

259 N.E.2d 774

357 Mass. 659

Maureen Ann BERGER et al. v. William STONER.

Supreme Judicial Court of Massachusetts, Hampden.

Argued May 4, 1970.

Decided June 12, 1970.

Edward V. Leja, Springfield, for defendant.

Morton J. Sweeney, Springfield, for plaintiffs.

Before WILKINS, C.J., and CUTTER, KIRK, SPIEGEL and QUIRICO, JJ.

QUIRICO, Justice.

This is an action of tort to recover damages for personal injuries sustained by the plaintiff Maureen Ann Berger when her hand went through a pane of glass in a door to a two-room bungalow owned by the defendant and rented by the plaintiff and her husband, Romaine Berger. The declaration was in five counts, the first of which was waived in open court. Counts 2 and 4 are brought by Mrs. Berger. In count 2 she alleges that the defendant was negligent in 'suffering and permitting the door of a certain furnished apartment to be in a dangerous, defective and unsafe condition * * *.' In count 4 she alleges that the defendant agreed to repair the door and that he repaired it negligently thus causing injury to her. Counts 3 and 5 make the same allegations, respectively, on behalf of Berger who seeks recovery for consequential damages. The jury found for the plaintiffs on counts 2 and 4 in the sum of $5,000 and on counts 3 and 5 in the sum of $700. The defendant duly took exceptions to the denial of his motion for directed verdicts, to part of the judge's instructions to the jury, and to the denial of his motion for a new trial presented after the verdicts. The case is before us on the defendant's substitute bill of exceptions.

The defendant's motion for directed verdicts raises the issue whether the evidence viewed in the light most favorable to the plaintiffs supports their causes of action. See Kelly v. Railway Exp. Agency, Inc., 315 Mass. 301, 302, 52 N.E.2d 411; Mazzaferro v. Dupuis, 321 Mass. 718, 719, 75 N.E.2d 503; Howes v. Kelman, 326 Mass. 696, 697, 96 N.E.2d 394. Pursuant to this rule, we summarize the evidence most favorable to plaintiffs' contentions. On July 20, 1963, the plaintiffs saw the defendant and his wife for purposes of renting a two-room furnished bungalow. There was conversation about the terms of the tenancy and the defendant said he would take care of all the repairs and fixtures and anything that needed to be done in the house and outside. Shortly thereafter the plaintiffs moved into the bungalow as tenants at will. The door involved in this case was a side door opening from the outside into the kitchen. It had a four-pane window located in the upper half of the door. If one were to face the door while in the kitchen, its doorknob would be on the left and its hinges on the right. When the plaintiffs moved in the door worked properly, but around the end of September or the beginning of October, the upper edge of the door on the doorknob side started to stick where the edge of the door met the door jamb. Mrs. Berger told the defendant about the problem and he said he would look at it. About three weeks later, in late October, the defendant planed the edge of the door after removing it from its hinges and placing it on horses. Thereafter the door worked properly for about two weeks but then it again started sticking from time to time until the date of the accident. Mrs. Berger notified the defendant of the problem when the sticking resumed, but he never did anything about it. On the afternoon of December 23, 1963, the plaintiffs went shopping. When they returned home, Berger opened the door and went into the house. Mrs. Berger followed him and put down the bundles. She then attempted to close the door. She had difficulty so she put her left hand on the doorknob and her right hand 'in the middle of the four panes of glass' and tried to close the door. The wooden strips separating the panes of glass were wet. Her...