Blanchard v. Stone's, Inc.
| Decision Date | 29 December 1939 |
| Citation | 304 Mass. 634,24 N.E.2d 688 |
| Parties | MYRA BLANCHARD v. STONE'S INC. SAME v. A. W. PERRY REALTY COMPANY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
November 15, 1939.
Present: FIELD, C.
J., DONAHUE LUMMUS, DOLAN, & RONAN, JJ.
Snow and Ice. Notice. Negligence, One owning or controlling real estate. Landlord and Tenant, Tenant's liability to third person Landlord's liability to third person.
One, who received a notice stating that the sender had sustained personal injuries resulting from a defective condition of premises in his control which caused water "to be discharged therefrom upon the sidewalk and snow and ice to accumulate and remain upon the said sidewalk," and who did not give a counter notice under Section 20 of G.L. (Ter. Ed.) c. 84 as amended by St. 1933, c. 114, Section 3, and Section 21 was precluded from contending that the notice was insufficient in that it failed to state the cause of the injury.
A notice under Section 18 of G.L. (Ter. Ed.) c. 84, in the amended form appearing in St. 1933, c. 114, Section 1, and Section 21, was not invalid because it was given to a corporation in a name which was not its corporate name but was one under which it conducted its business.
The proprietor of a store, lessee of a portion of a building, properly could be found liable for personal injuries sustained by a traveller who fell on ice formed on a public sidewalk where the evidence was that five hours before the accident water was dropping from melting snow accumulated on an overhanging sign maintained by the proprietor as part of the store property.
A finding of liability of the owner of a building for injuries sustained in a fall upon ice formed on a public sidewalk from water dripping from a sign attached to the front wall of two floors of the building let to tenants was not warranted where there was no evidence that either the sign or such portion of the wall was in his control.
TWO ACTIONS OF TORT. Writs in the Superior Court dated November 26, 1935. The declaration in each case alleged that the plaintiff sustained injuries when she fell upon a sidewalk in front of 251 Union Street in Rockland "by reason of an artificial accumulation of snow and ice, which artificial accumulation was due to the negligence of the defendant, its agents, servants or employees."
The notice to "Stone's Men's Shop" read as follows:
The actions were tried before Dillon, J., and a verdict for the plaintiff in the sum of $2,500 was recorded with leave reserved in each case. Thereafter verdicts for the defendants were ordered entered.
E. R. Langenbach, for the plaintiff.
R. Donovan, (C.
C. Willard with him,) for the defendant A.
W. Perry Realty Company.
F. G. Katzmann & M.
J. Dray, for the defendant Stone's Inc., submitted a brief.
The plaintiff fell upon the sidewalk of Union Street in Rockland late in the afternoon of January 29, 1935, in front of a store conducted by the defendant in the first case, which was located upon the street floor of a building owned by the defendant in the second case. The jury returned a verdict for the plaintiff against each defendant, and in accordance with leave reserved the judge, subject to the plaintiff's exceptions, ordered a verdict to be entered for each defendant.
The jury could find that the plaintiff slipped upon a round, dark patch of ice two feet in width, located in about the middle of a white cement sidewalk directly beneath a sign which had snow upon the top of it; that the rest of the sidewalk was clear, with the exception of a small amount of snow which projected from the gutter a little over the outer edge of the sidewalk; and that water was dripping from this sign at noon on the day of the accident.
In the action against the defendant Stone's Inc. there was evidence that one Stone had leased two stores, numbered 251 and 253 Union Street, in 1928, and that this lease expired in December, 1933, and was not renewed. The defendant corporation was formed in 1931. Stone was the president, treasurer, director and general manager, his wife was the secretary and a director, and the other director was an accountant. The store at 253 Union Street was vacated in 1933, and thereafter the corporation occupied the store at 251 Union Street for the sale of men's merchandise. Soon after Stone first occupied the premises he erected an oblong shaped sign which projected over and beyond the middle of the sidewalk. The lower edge of this sign was located a little below the coping that runs along the front of the building a short distance above the top of the first story. The sign was attached to this coping and to the outside wall of the second story of the building by angle irons. It was also supported by two chains running from the sign to the coping, and by three chains attached to the second story outer wall. The top of the sign was covered by a narrow roof, slightly pitched, which had vertical sides projecting down a short distance from the roof and over both sides and the outer edge of the sign. When first erected the sign was illuminated by electric lights which were installed under the roof and above each face of the sign. This sign was located about one-half way between 251 and 253 Union Street and displayed the words "Stone's Men's Shop." There was also a sign over the front of the store which read "Stone's Inc. Men's Shops" and the awning was lettered "Stone's Inc. Men's Shop." The word "Inc." in each instance, while readily legible, was smaller than the rest of the words showing the name of the proprietor of the business. See Slome v. Chief of Police of Fitchburg, ante, 187. Under each of the two front windows was painted the word "Stone's." Two of these signs indicated that the store was conducted by a corporation, two tended to show that it was maintained by an individual, and the third set forth a trade name which might apply equally to an individual or to a corporation. This defendant advertised in the local newspaper under the name of Stone's Men's Shop.
A notice addressed to "Stone's Men's Shop" was received by Stone on February 27, 1935, which he forwarded to someone almost immediately. Stone testified that he would not have done anything different from what he did if the notice had been addressed to "Stone's Inc." rather than to "Stone's Men's Shop." This notice gave the name of the plaintiff and the street and number of her residence in Rockland. It set forth the time and place of the accident, and alleged that it was caused by the defective condition of the premises, which caused water "to be discharged therefrom upon the sidewalk and snow and ice to accumulate and remain upon the said sidewalk." The notice made no mention of the sign. The defendant did not request a new notice from either the plaintiff or her attorney, who gave the notice upon one of his letterheads. The notice did not state any specific cause of the accident. Noonan v. Lawrence, 130 Mass. 161 . Merrill v. Springfield, 284 Mass. 260 . King v. Boston, 300 Mass. 377 . G.L. (Ter. Ed.) c. 84, Section 20, as amended by St. 1933, c. 114, Section 3, provides...
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