Flanagan v. Welch
| Decision Date | 23 February 1915 |
| Citation | 107 N.E. 979,220 Mass. 186 |
| Parties | FLANAGAN v. WELCH et al; FLANAGAN v. GARRITY et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; Frederick Lawton, Judge.
Action by Ellen Flanagan against Francis C. Welch and others, consolidated with an action by the same plaintiff against Robert J. Garrity and others. Verdict directed for defendants, and the plaintiff excepts. Exceptions sustained.
C. Toye, J. L. Keogh, S. A. Fuller, and J. H. Baldwin, all of Boston, for plaintiff.
H. C. Sawyer and Wm. H. Hitchcock, both of Boston, for defendants Welch and Bowditch.
E. L. Logan, for defendants Garrity and others.
Welch and Bowditch (the defendants in the first action) were the owners of adjoining buildings numbered respectively 1632 and 1634 Washington street. Each of these buildings was three stories in height. In each building the ground floor was sued as a store and the two upper stories were used as tenements. On March 18, 1896, they let 1634 Washington street to one Heffernan for a period of ten years. About two years before the expiration of this lease (namely on March 1, 1904), Welch and Bowditch made a written agreement extending it for a period of three years from the expiration of the original term. In this written extension they inserted the following reservation:
‘Reserving also to the lessors, their heirs and assigns, from this time the right to use in common with the lessee the entrance and stairway leading to the second story of said building the entrance to which is numbered 1634 on Washington street.’
On the same 1st of March, 1904 (and apparently as part of the same transaction), Heffernan assigned his interest in the lease extended as aforesaid to Garrity and Pendergast (the defendants in the second action). The accident to the plaintiff herein complained of happened on February 13, 1908; that is to say, it happened while the extended lease to Heffernan, assigned by him to Garrity and Pendergast, and the reservation contained in the extension of that lease, were in force and effect.
It appears from the bill of exceptions that at some time before March 1, 1904 (when they extended the lease to Heffernan and inserted in the extension the reservation stated above), Welch and Bowditch cut a door through the wall between 1634 Washington street and 1632 Washington street; this door connected the second floor of 1632 Washington street with the landing at the head of the first flight of stairs in 1634 Washington street. Although it is not in terms so stated, it is a fair inference from the bill of exceptions that this was done in order to use the whole of the ground floor of 1632 Washington street as a store. And it is plain on the bill of exceptions that the purpose of the reservation in the extension of the lease was to enable Welch and Bowditch to use the stairway of 1634 Washington street as the access to the tenements on the second and third floors of 1632 Washington street.
In September, 1904 (that is, some six months after the reservation made by them in their own favor for the use of the stairways in 1634 Washington street), Welch and Bowditch through an agent made an oral agreement for the lease to the plaintiff of the two upper stories of 1632 Washington street. Later, the plaintiff entered under this oral agreement and occupied the second and third stories of 1632 Washington street until some time after the accident here complained of, which (as we have said) happened on February 13, 1908.
The plaintiff testified that when she made the oral agreement for a lease of these two upper stories of 1632 Washington street, Welch and Bowditch's agent told her that she was to use the stairway in 1634 Washington street as the access to the two tenements let to her. She also testified that Welch and Bowditch's agent told her that they would keep the stairway for her use in as good condition as that in which it then was and she testified that it was then in good condition. Later, according to the plaintiff's testimony, the flagging between the bottom of the stairs and the outside door became cracked and loose, and the accident to the plaintiff happened by her tripping over the loose flagging when on her way to her tenement in the evening of February 13, 1908. It appeared in the evidence that the plaintiff before February 13, 1908, had complained of the defective condition of this flagging to Welch and Bowditch's agent and to Mr. Welch himself, and that both Welch and Bowditch's agent and Mr. Welch himself had promised (on these complaints being made) that the flagging should be repaired and put in a safe condition.
It also appeared from the plaintiff's testimony that at the time of the oral agreement between her and Welch and Bowditch's agent for the lease of the two upper stories of 1632 Washington street, the plaintiff asked the agent whether there was a janitor for the stairway and whether it would be lighted; and that the agent told the plaintiff that there was no janitor and that she would have to take turns with the tenants of 1634 Washington street (who also used the stairway) in washing the stairway and the flagging at the bottom. He also told her that the gaslight at the head of the landing was for her use as well as for the use of the tenants of 1634 Washington street in lighting the stairway. It further appeared (although it may not be of consequence) that this gaslight was turned out when the plaintiff lighted it and that on her making complaint to the agent he furnished her with a lantern, which, however, was not used by her.
It is stated in the bill of exceptions that while both of the second and third stories of 1634 Washington street were used as tenements the stairway here in question was used for the tenants of the second, but not for the tenants of the third, story of 1634 Washington street, access to the third story of 1634 Washington street being had by some means not disclosed in the bill of exceptions.
The first action was brought against Welch and Bowditch and the second against Garrity and Pendergast to recover for the injury received by the plaintiff on February 13, 1908. The two cases were tried together. The presiding judge directed the jury to return verdicts for both sets of defendants, and the cases are here on exceptions taken by the plaintiff to these rulings. ‘No question was raised as to the pleadings,’ and no question has been raised as to the due care of the plaintiff.
1. We are of opinion that the ruling directing a verdict for the defendants in the action against Welch and Bowditch was wrong. The agreement for a lease of the two tenements was an agreement for the sale of an interest in lands, tenements or hereditaments and so a contract on which, by reason of R. L. c. 74, § 1, cl. 4, no action could be brought. See Miles v. Janvrin, 200 Mass. 514, 517, 86 N. E. 785. But when the plaintiff entered into occupation under that oral agreement she became a tenant at will by force of R. L. c. 127, § 3, and the terms of the oral agreement creating the tenancy at...
To continue reading
Request your trial
-
Banaghan v. Dewey
...obligation. Miles v. Janvrin, 196 Mass. 431, 82 N.E. 708, 13 L.R.A.,N.S., 378; Id., 200 Mass. 514, 516, 86 N.E. 785; Flanagan v. Welch, 220 Mass. 186, 189-190, 107 N.E. 979; Fiorntino v. Mason, 233 Mass. 451, 453, 124 N.E. 283; Eisenhauer v. Ceppi, 238 Mass. 458, 460, 131 N.E. 184; Boudreau......
-
Garland v. Stetson
...such areas in the same condition as to safety as they were or appeared to be in at the time of the letting to Kotzen. Flanagan v. Welch, 220 Mass. 186, 107 N.E. 979; Fitzsimmons v. Hale, 220 Mass. 461, 107 N.E. White v. Beverly Building Association, 221 Mass. 15, 19, 108 N.E. 921; Draper v.......
-
Conahan v. Fisher
...and passageways. Hence for practical reasons he is held responsible for their safety, although, as pointed out in Flanagan v. Welch, 220 Mass. 186, 191, 107 N. E. 979, that liability is contrary to the principle commonly governing the relations of parties where one has an easement over the ......
-
Sordillo v. Fradkin
...occupying another tenement on the same floor, but remained in the control of the defendant for the use of both families. Flanagan v. Welch, 220 Mass. 186, 107 N. E. 979;Sullivan v. Northridge, 246 Mass. 382, 141 N. E. 114;Conroy v. Maxwell, 248 Mass. 92, 142 N. E. 809; Compare Phelan v. Fit......