Brian v. B. Sopkin & Sons, Inc.

• Decision Date: 28 June 1943
• Citation: 314 Mass. 180,49 N.E.2d 894
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: BRIAN et al. v. B. SOPKIN & SONS, Inc.

314 Mass. 180

49 N.E.2d 894

BRIAN et al.

v.B. SOPKIN & SONS, Inc.

Supreme Judicial Court of Massachusetts, Bristol.

June 28, 1943.

Action by Samuel Brian and others against B. Sopkin & Sons, Inc., to recover damage sustained by reason of defendant's negligence in permitting water to leak from defendant's premises to plaintiffs' premises on the floor below, wherein the case was referred to an auditor whose findings of fact were to be final. On auditor's report judgment was ordered for defendant on two counts, and for plaintiffs on a third count, and both plaintiffs and defendant appeal.

Judgment in accordance with opinion.Appeal from Superior Court, Bristol County; Hurley Judge.

Before FIELD, C. J., and DONAHUE, LUMMUS, QUA, and RONAN, JJ.

H. W. Radovsky and C. Soforenko, both of Fall River, for plaintiff.

B. Horvitz and L. A. Horvitz, both of Fall River, for defendant.

LUMMUS, Justice.

This is an action of tort. The declaration alleges negligence in permitting water to leak from the defendant's premises to the plaintiffs' premises on the floor below, causing damage to the plaintiffs' property. The three counts allege such negligence on three different days, respectively. March 27, March 29, and March 30, 1937.

The case was referred to an auditor whose findings of fact were to be final, and comes here on his report. On his report judgment was ordered for the defendant on the first two counts, and for the plaintiffs on the third count with damages of $1,051.09. Both parties appealed.

The findings of the auditor may be summarized as follows. The plaintiffs occupied the second floor, and the defendant the third floor, in the Durfee Mills in Fall River. There was a leakage of water from the defendant's premises to the plaintiffs' premises on each of the three days mentioned in the declaration. The leakage came from a recently installed pressing system using thirty irons through which steam passed. The water came through a leaky valve connected with one of the irons. The leaks occurred at about seven o'clock in the morning, when the steam was turned on and forced whatever condensation was in the system to escape through the leaky valve and the iron attached thereto. The plaintiffs gave no notice to the defendant of any leakage on March 27, and the first notice was given on March 29, evidently after the leakage had occurred. There was no finding that before such notice the defendant knew or ought to have known of the leakage. The auditor finds as follows: ‘Up to this date March 29, 1937, no leak of any importance had ever developed in the pressing system of the defendant. The pressing system had been frequently inspected and kept in good order.’ The floor of the defendant's premises consisted of wide boards loosely jointed, which would allow water to leak through.

In our opinion judgment for the defendant was rightly ordered on the first two counts. The defendant had no reason to apprehend injury to the plaintiffs until after the leak that occurred on the morning of March 29. The principle of Rylands v. Fletcher, L. R. 3 H. L. 330 (Gorham v. Gross, 125 Mass. 232, 238,28 Am.Rep. 224) does not impose liability for ordinary uses of property like the one presented in this case, which involved no great threat to neighbors. Ainsworth v. Lakin, 180 Mass. 397, 399, 62 N.E. 746,57 L.R.A. 132, 91 Am.St.Rep. 314;Kaufman v. Boston Dye House, Inc., 280 Mass. 161, 182 N.E. 297;Bratton v. Rudnick, 283 Mass. 556, 560-562, 186 N.E. 669;Garrett v. M. McDonough Co., 297 Mass. 58, 7 N.E.2d 417. Neither is this a case to which the doctrine res ipsa loquitur is applicable. This has been decided in cases where, as in this case, a leak occurred in a pipe. Morrow v. Otis, 251 Mass. 65, 67, 146 N.E. 363;Goldman v. Boston, 274 Mass. 329, 174 N.E. 686;Gerard v. Boston, 299 Mass. 488, 13 N.E.2d 415. Moreover, that doctrine merely permits, and does not require, the conclusion that there was negligence (Roscigno v. Colonial Beacon Oil Co., 294 Mass. 234, 200 N.E. 883;Garrett v. M. McDonough Co., 297 Mass. 58, 60, 7 N.E.2d 417), and here negligence is negatived, in our opinion, by the findings already recited.

The case is different with respect to the leakage which occurred on March 30. The defendant had notice on the day before that water had escaped and had damaged a large quantity of the plaintiffs' goods. ‘An employee of the plaintiff[s] went to the defendant's premises to as certain what had caused the leak, and found that the water had come from the defendant's pressing system.’ At that time ‘employees of the defendant were busy mopping up the floor, and trying to absorb the water with dress shavings.’ An employee of the defendant called the contractor who had installed the system and informed him that a leak existed in it. The leaky valve was found and a pail was placed under it. All this occurred before the leakage of March 30. But no precaution appears to have been taken to prevent leakage through the iron. Although the auditor's report constituted a...