Galvin v. Beals

• Decision Date: 06 January 1905
• Parties: GALVIN v. BEALS. SAME v. WINCHENDON SAV. BANK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

187 Mass. 250

72 N.E. 969

GALVIN

v.BEALS.

SAME

v.WINCHENDON SAV. BANK.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 6, 1905.

Exceptions from Superior Court, Middlesex County; H. N. Sheldon, Judge.

Separate actions of tort for injuries by one Galvin against one Beals and by the same against the Winchendon Savings Bank. A verdict was directed for defendants, and plaintiff excepted. Exceptions overruled.

Jas. J. Irwin, for plaintiff.

Gaston, Snow & Saltonstall, for defendants.

LATHROP, J.

These are two actions of tort, tried together in the superior court, to recover for personal injuries sustained by the plaintiff in consequence of the giving way of a railing of the piazza of the house in which she was the sole tenant. At the close of the plaintiff's evidence the judge ruled that there was no evidence of misfeasance on the part of the defendant as distinguished from a mere nonfeasance, and that there was no evidence to warrant a verdict for the plaintiff; and on that ground directed a verdict for the defendant. This ruling was excepted to, and is the principal question in the case. There is also an exception to the exclusion of evidence, to which we shall refer hereafter.

The bill of exceptions leaves us in doubt whether there was sufficient evidence to hold either defendant as the landlord of the plaintiff, but we shall assume, for the purposes of the case, that one or the other of the defendants might have been found to be the landlord, and that the ruling was made on another branch of the case.

The plaintiff's evidence tended to show that she hired the house in question in April, 1899, of George C. Beals, son of the defendant in the first case; that Beals let houses for his father, and also for the defendant in the second case, in the same neighborhood where the house he let to the tenant was situated. George C. Beals had made repairs upon the house at several different times prior to September 1, 1899. The plaintiff testified that about September 1st, when George C. Beals came to collect the rent, she told him that she would not stay in the house any longer, and that he said: ‘Well, Mrs. Galvin, my father wants you to stay here, and I will make repairs right away. Just tell me what you want of them, and I will see that it is done next week.’ She further testified that she told him that ‘the front door would not fasten, that there was no lock and knob on it, and that the front steps were not fit for use’; that Beals then said, ‘Everything will be fixed up next week sure;’ that within a few days Beals brought lumber there, and two days after he put a new board in the floor of the piazza, a new tread in the steps, a door bell on the door, and that she heard him hammering there for quite a while. The plaintiff further testified that two days later she made use of the piazza for the first time; that she stepped out of the front door onto the piazza, and went to the railing on the right as she came out to air a rug, and as she was in the act of doing so, leaning over the railing on the right, the railing as a whole gave way, and she fell to the ground below. On cross-examination the plaintiff testified that she did not remember that in any of her talks with Beals she had said anything about this rail nor that he did. George C. Beals, who was called by the plaintiff as a witness, testified that his father, the defendant in the first case, was the treasurer of the defendant in the second case; that he (the witness) let the house, and that his father had nothing to do with the letting or keeping the premises in repair. The witness also denied the conversation which the plaintiff testified to, but admitted repairing the steps, and testified that about two weeks before the accident he happened to notice the railing which gave way, and found...