Bond Pharmacy, Inc. v. City of Cambridge

• Decision Date: 04 February 1959
• Citation: 338 Mass. 488,156 N.E.2d 34
• Parties: BOND PHARMACY, INC. v. CITY OF CAMBRIDGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 34

156 N.E.2d 34

338 Mass. 488

BOND PHARMACY, INC. v. CITY OF CAMBRIDGE.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 8, 1958.

Decided Feb. 4, 1959.

Andrew T. Trodden, Cambridge, for plaintiff.

Richard D. Gerould, City Solicitor, Boston, for defendant.

Before WILKINS, C. J., and RONAN, SPALDING, COUNIHAN and CUTTER, JJ.

SPALDING, Justice.

The plaintiff in this action of tort seeks to recover for the alleged negligence of the defendant in allowing water to enter the plaintiff's premises. There was a verdict for the plaintiff, which was recorded under leave reserved. Various exceptions were saved by the defendant but those here pertinent are exceptions to the denial of its motions for a directed verdict and to enter a verdict in its favor under leave reserved; to the failure to grant certain of its requests for rulings; and to the admission of certain evidence.

The evidence most favorable to the plaintiff is as follows: The plaintiff, a corporation, operated a drug store at 4 Inman Square, Cambridge. On December 23, 1952, at approximately 5:00 P.M. one Vincent, the property manager of the plaintiff's landlord, was informed that water was 'coming up in front of the building at the entrance of the drug store.' Vincent, assuming that a water main had burst, dialed the telephone number of the defendant's water department. A man's voice answered 'water department.' Vincent then said that there was a water leak in the street, near the sidewalk, and asked that it be attended to. (This evidence was admitted over the defendant's exception and will be discussed later.)

One Cohen, a pharmacist employed by the plaintiff, testified that he noticed at approximately 7:00 P.M. that water was coming up through the cellar floor of the pharmacy; that he and other employees then began moving onto platforms the large supplies of stock that were piled on the cellar floor; that they continued to do this until about 9:30 P.M. at which time the water began to pour into the cellar and reached a depth to just below his hips; and that it took about two weeks to clean up the cellar.

One Merrin, an officer of the plaintiff, testified that he was informed of the leak shortly after 7:00 P.M. and the he notified the defendant (presumably by telephone) at about 7:15 P.M.; that the water began to rise rapidly at 8:30 or 9:00 P.M. at which time he called the defendant 'twice in rapid succession'; and that at its highest point, between 9:30 and 10:00 P.M., the water was about hip deep and remained at that level until shortly after midnight, when an employee of the defendant broke open a sewer pipe so that the water could drain out.

The defendant introduced evidence that the water department first learned of the leak at about 8:00 P.M. and that when the superintendent arrived one hour later he learned that the emergency crew had already arrived, had closed seven or eight gates, and had determined the cause of the leak.

1. The testimony by Vincent relating to his telephone call to the water department at five o'clock was properly admitted. There was evidence that the telephone number of the water department had been dialed and that someone answered the call by saying 'water department.' There was also evidence that telephone complaints were answered by a switchboard operator and that the 'switchboard never closes down.' This was sufficient to warrant the inference that the call went to the water department and was answered by someone there. Massachusetts Northeastern St. R. Co. v. Plum Island Beach Co., 255 Mass. 104, 114, 151 N.E. 84. Irving Tanning Co. v. Shir, 295 Mass. 380, 382-384, 3 N.E.2d 841. Theisen v. Detroit Taxicab & Transfer Co., 200 Mich. 136, 166 N.W. 901, L.R.A.1918D, 715. Connolly v. Davis, 114 Neb. 556, 558-560, 208 N.W. 626. See Van Riper v. United States, 2 Cir., 13 F.2d 961, 968; New York Life Ins. Co. v. Silverstein, 8 Cir., 53 F.2d 986, 988; Wigmore on Evidence (3d ed.) § 2155. The situation here is to be distinguished from that of an incoming call. The fact that the person initiating the call says he is A is not enough to make the conversation admissible. There must be evidence (usually a recognition of A's voice by the receiver of the call) establishing A's identity. Hence such cases as Lord Electric Co. v. Morrill, 178 Mass. 304, 59 N.E. 807, and Commonwealth v. Harris, 232 Mass. 588, 591, 122 N.E. 749, cited by the defendant, are not controlling. Considering the circumstances and the nature of Vincent's call, it could have been found that the person answering it had apparent authority to receive such calls, and that notice to him of the leak was notice to the defendant. Lord v. Lowell Institution for Savings, 304 Mass. 212, 214, 23 N.E.2d 101. See Denny v. Riverbank Court Hotel Co., 282 Mass. 176, 179, 184 N.E. 452; Rintamaki v. Cunard S. S. Co., Ltd., 205 Mass. 115, 117-119, 91 N.E. 220. The fact that Vincent's testimony does not reveal whether the person to whom he spoke over the telephone expressly acknowledged receipt of the message goes to the weight of the evidence rather than its admissibility.

2. The defendant excepted to the introduction in evidence of exhibit 1 which was an inventory of the stock damaged by the flooding. This had been prepared by the plaintiff's employee Cohen from prices furnished by a wholesale druggist. The circumstances in which the exhibit was admitted are these. Merrin, the plaintiff's president and manager, testified that he had examined the inventory and that the prices listed on it would be the 'cost to him,' that is, the wholesale price. After questions and anwers relating to Merrin's experience in the drug business he testified that the prices listed, with few exceptions, represented the fair market value and that after the flood the merchandise had no value. He then testified...