Feeley v. Doyle
| Decision Date | 16 October 1915 |
| Citation | 109 N.E. 902,222 Mass. 155 |
| Parties | FEELEY v. DOYLE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Superior Court, Worcester County; Henry A. King, Judge.
Action by James Feeley against Bridget Doyle. There was a verdict for plaintiff, and the cause reported on stipulation. Judgment on verdict.Charles F. Campbell and James C. Donnelly, both of Worcester, for plaintiff.
Daniel F. Gay, of Worcester, for defendant.
The plaintiff went into ‘the ice cream parlor’ of one Pano, ordered some ice cream and sat down at a marble topped table near an iron post. While he was eating the ice cream a shower of bricks and an iron plate came down on top of him. This action is brought against Pano's landlord to recover compensation for that injury.
The jury were warranted in finding the following facts: The accident happened in March, 1912. Pano became a tenant of the store some three or four years before. When he became a tenant of the ‘parlor’ a brick chimney ran up through the middle of it. About a year and a half before the accident Pano, thinking that the chimney hurt the appearance of the place as an ‘ice cream parlor,’ asked the defendant to substitute an iron post for the chimney. At that time Pano was paying a rent of $15 a month. Just before that time the defendant told Pano that she should raise his rent to $20 a month. It was finally agreed that Pano should pay for the expense of substituting the iron post for the chimney, and that in consideration thereof the rent should not be increased.
When the shower of bricks and the iron plate fell they broke the marble topped table at which the plaintiff was sitting, and to quote Pano's testimony--
‘the iron post went down through the floor to the cellar floor with the top of the post projecting through the floor, and the iron plate which formerly supported the post was tilted against the post partly in the store and partly in the cellar.’
When the iron post was substituted for that part of the chimney which went through Pano's store an iron plate was placed upon the top of that part of the chimney which began in the cellar and reached the floor of Pano's store. The iron post was placed on that iron plate. At the top of the iron post and on a level with the ceiling of Pano's store another iron plate was placed to support the chimney above that point. It is evidence from the testimony of Pano that for some reason the iron post slipped off the iron plate on which it rested, and went down through the floor, leaving the top of it projecting above the floor, and ‘the iron plate which formerly supported the post tilted against the post partly in the store and partly in the cellar.’ The dimensions of this plate were 16x20 inches.
1. It is true, as the defendant contends, that the plaintiff had no greater rights than Pano.
2. But it is not true, as she further contends, that the plaintiff did not have the rights which Pano had as against the defendant landlord. She contends that this case comes within Thomas v. Lane, 221 Mass. 447, 109 N. E. 363. But that is not so. Thomas v. Lane was a case where repairs had been made gratuitously by a landlord upon the tenant's request. The decision in Thomas v. Lane was that in such a case one not a party to the contract by which the repairs were gratuitously made could not recover for negligence in making them. But the case at...
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