Follins v. Dill

• Decision Date: 25 February 1918
• Citation: 229 Mass. 321,118 N.E. 644
• Parties: FOLLINS v. DILL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

229 Mass. 321

118 N.E. 644

FOLLINS

v.DILL.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 25, 1918.

Exceptions from Superior Court, Suffolk County; Frederick Lawton, Judge.

Action by William Follins, administrator, against George A. Dill, trustee. There was verdict for plaintiff, and defendant excepts; the trial court directing that his report of a question for determination by the Supreme Judicial Court be presented by defendant with his bill of exceptions. Exceptions sustained, and judgment ordered entered for defendant.

Daniel H. Coakley and W. Jennings Patron, both of Boston, for plaintiff.

Chas. S. Knowles, of Boston, for defendant.

BRALEY, J.

The trial court had power to vacate the order dismissing the exceptions, and thereupon to amend its docket in conformity with previous orders extending the time for filing exceptions, but which through inadvertence had not been docketed. Dalton-Ingersoll Co. v. Fiske, 175 Mass. 15, 55 N. E. 468. Having been seasonably filed and allowed, the defendant's exceptions under the amended record are properly before us. The jury could find that by falling or walking into the unguarded well of an elevator, designed for the transportation of freight, the plaintiff's intestate while in the exercise of due care suffered the injuries which after a period of conscious suffering caused his death, and that the accident would not have occurred if the operating equipment had been in proper repair. Follins v. Dill, 221 Mass. 93, 108 N. E. 929.

The plaintiff, however, cannot recover unless the defendant had undertaken the duty of maintaining the elevator in a reasonably safe condition for the intestate's use. He went to the building to get waste paper from the third floor leased to one Aronson, who for his own benefit and to be relieved from accumulating rubbish, gave the paper as the jury could find to any one who ‘would come there and take it away.’

By the terms of the lease, the lessee ‘agreed to use the freight elevator for freight purposes only and will allow no person to ride on the same,’ and the intestate was not clothed with any greater rights than the lessee under whose implied invitation he came upon the premises. Baum v. Ahlborn, 210 Mass. 336, 338, 96 N. E. 671. It is certain from his own declarations as testified to by his sister, and the evidence of his companion the only witness of the accident, that when injured he was not intending to use the elevator for freight, as sufficient waste paper to fill the bags he took with him but left in the room, had not accumulated, and when he started for the elevator his purpose was to use it only as a means of transit to the street floor. But its use under such circumstances having been prohibited by the covenant the intestate at most was a licensee, and the defendant's request for a directed verdict should have been granted. Billows v. Moors, 162 Mass. 42, 37 N. E. 750. The plaintiff in avoidance of this conclusion relies on evidence from which she maintains that while this provision had not been expressly annulled the jury could find, that it had been waived by permitting lessees and their invitees to use the elevator for the transportation of passengers when unaccompanied by freight.

The covenant being for his benefit, the lessor doubtless could...