Boronskis v. Texas Co.

• Decision Date: 02 April 1962
• Citation: 344 Mass. 477,183 N.E.2d 127
• Parties: Bruno BORONSKIS et al. v. The TEXAS COMPANY. . Augued
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 127

183 N.E.2d 127

344 Mass. 477

Bruno BORONSKIS et al. v. The TEXAS COMPANY.

Supreme Judicial Court of Massachusetts, Norfolk.

Augued April 2, 1962.

Decided June 4, 1962.

James M. Langan, Boston (Patrick F. Murphy, Boston, with him), for plaintiffs.

Robert W. Cornell, Boston, for defendant.

Before WILKINS, C. J., and SPALDING, KIRK and SPIEGEL, JJ.

SPALDING, Justice.

In this action of tort the jury returned a verdict for the plaintiffs, and the case comes here on the defendant's exceptions.

There was evidence of the following: The plaintiffs owned and operated a diner in Stoughton which was adjacent to a gasoline station owned by the defendant and leased to one Zumas who ran the station. The lease provided that the repairs and maintenance of the station were the responsibility of the lessee. ¹ However, during the period of the lease (about fourteen years) the defendant had voluntarily attended to virtually all of the repairs without out any charge to Zumas. An independent contractor employed by the defendant testified that he tested the gasoline tanks for leaks 'only at the order of the [defendant]' and that he would not test them at the request of Zumas.

Bruno Boronskis (hereinafter called the plaintiff) testified that he first smelled gasoline in his diner early in July, 1952. Early in December he complained of this to Zumas and the defendant's local agent. On December 18, 1952, the plaintiff, through his attorney, sent a letter to the defendant stating that he had had tests made by the gas company and the tests revealed that there were no leaks in the gas pipes; and that the men making the tests 'believed there was a gasoline leakage on the premises next door.' The letter concluded: 'These odors are persisting and I request that you make an immediate examination and inspection of your premises and equipment on which the Texaco Station is being run to check on gasoline leaks.' The plaintiff received no reply to this letter. On March 18, 1953, the plaintiff through his attorney again wrote to the defendant stating that a dangerous condition (leaking of gasoline) existed at the gasoline station which was seriously affecting the plaintiff. The defendant was requested to 'do something at once.'

On March 31, 1953, gasoline was found in the cellar of the plaintiff's diner, which had seeped up through the floor. Upon order of the fire department the diner ceased operations. That the gasoline that entered the diner came from the adjacent station and that it caused substantial damage to the plaintiff's property is not disputed.

A broken flange on one of the gasoline tanks, from which the gasoline had escaped, was subsequently discovered. According to one Connors, who on March 31 was hired by the defendant to investigate and to remedy the condition at the gasoline station, one of the tanks had a broken flange and there was a torn place which was rusty. 'The tear he saw had existed more than a week or a month, he would say about a year.' An air pressure test was applied by Connors to discover the leak. If such a test 'had been put on the tank with the broken flange at any time after the flange broke the test would have shown that there was a leak in the tank.'

The defendant's exceptions arise out of the denial of its motion for a directed verdict and the refusal of the judge to grant certain requests for instructions. The question presented by these exceptions is the same and, as stated by the...