Follins v. Dill

• Decision Date: 21 May 1915
• Citation: 108 N.E. 929,221 Mass. 93
• Parties: FOLLINS v. DILL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

221 Mass. 93

108 N.E. 929

FOLLINS v. DILL.

Supreme Judicial Court of Massachusetts, Suffolk.

May 21, 1915

COUNSEL

D. H Coakley and J. G. Walsh, both of Boston, for plaintiff.

Dickson & Knowles, of Boston, for defendant.

OPINION

RUGG C.J.

The plaintiff's intestate received mortal injuries by walking into a dark place where he supposed was an elevator, but which in fact was an elevator well. A crucial question is whether the plaintiff's intestate had a right to use the elevator at the time. Whether he had that right depends in turn upon the right of one Aronson, a tenant of the defendant. The plaintiff's intestate had no greater right than Aronson, by whose invitation or permission he came upon the premises to take away paper stock. Expecting to get such freight from Aronson's premises, he had ridden up in the elevator with a companion, and, finding no freight, was trying to ride back on the same elevator when injured. It was a freight elevator exclusively in the control of the defendant. The premises of Aronson were on the third floor of a six-story building. Aronson occupied the premises under a written lease from the defendant which contained this clause:

'This is a lease of the floor space only, excepting that the staircases may be used by the lessee for the purpose of access to and from the leased premises. * * * The lessee agrees to use the freight elevator for freight purposes only and will allow no person to ride on same.'

There was a passenger elevator for the use of Aronson and those having access to his tenement. It is plain that under the terms of the lease the plaintiff cannot recover. It explicitly prohibits persons from riding on the freight elevator.

It is urged that there was evidence of a custom to control the express clause of the lease. The entire testimony on that point all of which appears to have been admitted without exception is from the defendant, in these words:

'It was the general custom, when Aronson or any tenant on the second floor had some freight to be delivered there, that the man delivering the freight would come to the elevator, put it on the elevator and go with it to the floor. This was a freight elevator, used for raising and lowering freight to various tenants and used by the tenants and people going there, for the delivery of freight to the tenants and for the taking away of freight. As far as I know, that was the common custom in the use of that elevator by people having business with the tenants of the building. I presume, in delivering freight or merchandise of any description to the various tenants, the person delivering it would put it on the elevator and then go with it to the floor and deliver it.'

That testimony does not contradict the terms of the lease. It goes no further than to show that while delivering freight the person in charge of it might ride on this elevator. That apparently was a necessary incident of the use of the elevator exclusively for freight. That is the limit which anybody using the freight elevator in the right of the tenant Aronson could go. The plaintiff's intestate was not doing or intending to do that. It is plain that if Aronson had been in the shoes of the plaintiff's intestate he could not recover. No freight was on the elevator at this time. The plaintiff's intestate and his companion had no freight for Aronson when they went up and they had none to bring down from Aronson's premises. Under these circumstances they had no right to ride down on the freight elevator. They either should have used the passenger elevator or descended the stairs. Even if it be assumed in favor of the plaintiff that an express covenant in an instrument under seal may be changed by conduct, the testimony falls far short of warranting the inference that the express agreement in this lease had been waived or modified to the extent of allowing two persons, the plaintiff's intestate and his companion Cole, to ride up in this elevator to Aronson's floor in the hope of getting freight, and when they failed to find any, to ride down again in the freight elevator, without taking any freight either way. The evidence does not cover any such situation as the present. The case is plainly distinguishable from Stewart v. Harvard College, 12 Allen, 58. Boyle v. Columbian Fire Proofing Co., 182 Mass. 93, 64 N.E. 726, upon which the plaintiff also relies, did not involve the terms of a written lease. Covenants in leases must be given effect, and express contractual rights under written instruments must be preserved even when in conflict with an humanitarian impulse. This defendant is warranted in asking a court of law to protect him against legal liability for the misfortune of which the plaintiff complains. In the opinion of a majority of the court a verdict should have been directed for the defendant, as set forth in his requests numbered 7 and 8.

It is not necessary to determine whether the plaintiff's intestate was a licensee or a trespasser, and that question is left undecided. The point whether such an express covenant can be modified by custom or usage, and if it can be, what evidence is necessary to show such modification, has not been argued, is not necessarily involved, and no opinion is expressed upon it. See Boruszweski v. Middlesex Mut. Ins Co., 186 Mass. 589, 593, 72 N.E. 250; Hastings v. Lovejoy, 140 Mass. 261, 2 N.E. 776, 54 Am. Rep. 462; Thomas v....