Ferguson v. Ashkenazy

• Decision Date: 04 November 1940
• Parties: FERGUSON v. ASHKENAZY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

307 Mass. 197

29 N.E.2d 828

FERGUSON

v.ASHKENAZY.

Supreme Judicial Court of Massachusetts, Essex.

Nov. 4, 1940.

Tort action by Mary Ferguson against Sarah Ashkenazy, for injuries sustained by plaintiff while a tenant in an apartment house owned by the defendant. The district court found for plaintiff in the sum of $950 and reported to Appellate Division its denial of five requests for rulings filed by the defendant. From order of the Appellate Division dismissing the report, the defendant appeals.

Affirmed.Appeal from District Court of Southern Essex; Fay, Judge.

Argued before FIELD, C. J., and DONAHUE, LUMMUS, QUA, and RONAN, JJ.

J. A. Fogarty, of Lynn, for plaintiff.

J. W. Morgan, W. E. Sisk, and R. L. Sisk, all of Lynn, for defendant.

DONAHUE, Justice.

This is an action of tort brought by a tenant against her landlord to recover damages for personal injuries. At the direction of the defendant, the plaintiff and the other tenants in a twelve-apartment house owned by the defendant vacated it in order that the building might be fumigated to destory bugs and vermin therein. When the plaintiff returned to her apartment after the fumigation she was overcome by fumes still remaining in the building and was injured.

The case was tried in a district court where the judge found for the plaintiff. He filed no finding of facts found by him. He reported to the Appellate Division his denial of five requests for rulings filed by the defendant. The Appellate Division ordered the report dismissed.

The defendant made a contract with a company engaged in the business of fumigation by the terms of which the company, for a set price, agreed to fumigate the defendant's apartment house. The defendant's daughter, acting as agent for her mother, told the plaintiff three days before the work was done that the house would be fumigated on the following Monday and that the plaintiff and the other tenants would have to leave the building and stay out while the building was being fumigated. The plaintiff said she was not feeling well. On the day set, the employees of the company arrived at the house at about 9:30 A. M. Neither the defendant nor her daughter were there. The plaintiff, who was seventy-three years old and ill, was reluctant to leave but finally went with the manager of the fumigating company in an automobile to the house of her niece, where she stayed until evening. The manager told the plaintiff that it would be two or three hours before the tenants could come back.

The manager of the fumigating company testified in part as follows: The process of fumigation adopted by the company required that all tenants should leave the building and stay out until the fumigation was completed. It also required that all openings in the building be sealed, including all doors, windows, pipes and places where air might enter. In each room and hall in the building a colorless gas was generated by mixing sulphuric acid and sodium cyanide. The gas was described by the manager of the company as ‘toxic and * * * fatal.’ When the building was thus sealed, barriers and guards were placed by the company at the entrances and at the front doors, and signs were placed there which bore the words: ‘Danger-Fumigation-Poisonous Gas-Do not enter.’ The fumigation of a building of the size of the defendant's apartment house would take about three hours. The chemicals were then removed by employees of the company wearing proper gas masks, the windows and doors were opened, and the building was ventilated. Under ordinary circumstances tenants could safely return to the building in about two and a half hours after ventilation began.

A finding was warranted that the work underatken by the company was not completed until the building was ventilated and had become fit for safe occupation by the tenants.

Since the evidence as to conditions and happenings at the apartment house when the plaintiff returned there in the evening was conflicting, we must here take the version of the evidence most favorable to the plaintiff. She returned to the apartment house at about 7:30 P. M. Employees of the fumigating company were then on the premises. She asked the defendant's janitor if she could go into the house. He answered in the negative, but said that she could enter in about half an hour. She then left and waited in a nearby grocery store. She returned to the defendant's apartment building at about 9:45 P. M. When she arrived there were ropes across the entrances. Some of the other tenants were seated on the steps. The janitor was there and he told her she could go in. She asked the manager of the fumigating company if it was all right to go in and he said ‘yes.’ She then proceeded to enter the building. At the time she entered there were no ropes, barriers or signs around the house. She went to her apartment, which was on the second floor, where she noticed a peculiar suffocating odor. She was taken sick and twice went to the piazza and vomited. As she was preparing to go to bed she lost consciousness and was taken to a hospital.

The defendant employed the fumigating company as an independent contractor to perform for a stipulated sum the work of fumigating her apartment building. The company had ‘done some fumigating for her in other houses.’ The evidence did not warrant findings that the defendant was negligent in selecting this company to do the work or in making the contract which she did make or that the defendant retained control of the manner in which the work should be done.

1. It is the general rule that ‘where one is employed under an entire contract for a stipulated sum, and is not under the control of his employer, the relation is held to be that of contractor and contractee, and not that of master and servant, and the subcontractor alone is liable for negligence in the performance of the work. There are, however, certain well defined exceptions to this general rule.’ Herrick v. Springfield, 288 Mass. 212, 219,192 N.E. 626, 628;Boomer v. Wilbur, 176 Mass. 482, 484, 57 N.E. 1004,53 L.R.A. 172; American Law Inst.Restatement: 4 Torts, § 835.

One such exception exists where an owner of real estate employs an independent contractor to do work thereon, and the nature of the work to be done is such that an inherently dangerous condition is thereby created which will cause injury to others unless guarded against. Where ‘the work to be performed necessarily will cause injury to others unless precautions are taken to protect them from the consequences of such work, the employer is liable for the negligence of an independent contractor.’ McGinley v. Edison Electric Illuminating Co. of Boston, 248 Mass. 583, 586, 143 N.E. 537, 538;Boucher v. New York, New Haven & Hartford Railroad Co., 196 Mass. 355, 359, 360, 82 N.E. 15, 13 L.R.A.,N.S., 1177; Boomer v. Wilbur, 176 Mass. 482, 484, 57 N.E. 1004,53 L.R.A. 172; American Law Inst.Restatement: 4 Torts § 835(e).

On facts which the judge was warranted in finding, the present case falls within this exception to the general rule that frees an owner from liability for the acts of an independent cotnractor. The defendant required the plaintiff and the other tenants of the building to vacate their apartments and to remain out until the process of fumigation had been completed. This process entailed the creation of a dangerous gas and its dissemination throughout the entire building. Thus an inherently dangerous condition was created by the independent contractor, which continued not only during the time while gas was being generated but also for a considerable time thereafter and until, by ventilation, the gas had been driven from the building. By stationing a guard...