Garland v. Stetson
| Decision Date | 27 September 1935 |
| Citation | 197 N.E. 679,292 Mass. 95 |
| Parties | GARLAND v. STETSON et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Report from Superior Court, Suffolk County; Bishop, Judge.
Action of tort by Walter S. Garland against Charles Stetson and others. After the recording of a verdict for the plaintiff for $7,500 subject to leave reserved, the judge ordered a verdict for the defendants. On report.
Judgment ordered entered for the defendants.
F. I. Rose, of Boston, for plaintiff.
J. T Connolly and W. R. Donovan, both of Boston, for defendants.
This is an action against the owners of a five-story commercial building, the first floor and basement of which had been let to one Kotzen a wholesale fruit and produce dealer, to recover damages for injuries received by the plaintiff in falling from the first floor to the bottom of the well of a freight elevator. The elevator also served the upper floors of the building but these at the time of the plaintiff's accident were unoccupied. The plaintiff had bought goods from Kotzen for many years and during the latter's tenancy was accustomed to go to the premises in question several times a week to make purchases. On the day of the accident he went there for that purpose. He examined the goods in and about the front part of the store and having been told that Kotzen whom he wished to see, was upstairs, he went to the elevator shaft which was located about twenty-five feet from the front of the store. He testified that although the sum was shining outside, it was very dark in the vicinity of the elevator shaft and no electric lights were there turned on. He noticed, however, that the elevator was there and that the gate at the elevator opening was tied up with a rope so that it could not drop down when the elevator car had left that floor. He stepped into the car and shouted for Kotzen. Receiving no reply he went back to the front of the store and resumed his examination of the merchandise there displayed. After a few moments he went again to the elevator shaft to shout to Kotzen. When in the vicinity of the opening he saw coming toward him in the narrow passageway in front of the elevator a man, not an employee of Kotzen, carrying a crate on his shoulder. He testified that without considering the gate and the fact that he had observed a few moments before that the gate was tied up or without looking to see if the elevator car was still there, in order to get out of the way of the man approaching he stepped to one side and through the elevator opening. The elevator was not there and he fell to the bottom of the shaft. The elevator opening was equipped with a gate originally designed to fall automatically and furnish a barrier to the elevator well when the elevator car was not at that floor. There was evidence warranting the finding that at the time of the letting to Kotzen and at the time of the accident, the elevator gate if not tied up would, because of the defective condition of the mechanism supporting it, come down when the car was stopped at that floor level thus barring entrance to or egress from the car. At the time of the letting and of the accident it was tied up and hence could not drop and provide a barrier to the elevator opening when the elevator car was not at that floor.
There was conflicting evidence as to the terms of Kotzen's tenancy. The defendants introduced in evidence as Exhibit 4 a typewritten statement which purported to set forth the terms of the letting. It was signed by Kotzen at some time prior to the trial and by the defendants at the time of the trial. Among other things it provided indemnity to the defendants from all loss, damage, liability or expense incurred by reason of the tenant's neglect or use of the premises or anything therein, or by reason of any injury to any person therein or on the elevators of approaches thereto and also provided that the agreement should be construed as including use of the premises by persons claiming rights to be therein through or under the tenant. There was also evidence introduced by the defendants that Kotzen signed the agreement at the defendants' office at or about the time he became a tenant more than a year before the accident. But Kotzen testified that he signed no paper at the defendants' office, and, variously, in prolonged direct and cross-examinations, that he signed the paper after the accident, that he did not remember when he signed it, that he was positive that he did not sign it before a time several weeks after the accident, that according to his best recollection he signed it after the accident and again that according to his best recollection he thought it was true that he signed it before the accident. We think that there was presented the situation of conflicting statements of a witness so that it was for the jury to say where the truth lay, and not the situation where a witness finally definitely adheres to one statement in preference to the other. Sullivan v. Boston Elevated Railway Co., 224 Mass. 405, 112 N.E. 1025; Goodell v. Sviokcla, 262 Mass. 317, 159 N.E. 728; Purple v. Inhabitants of Greenfield, 138 Mass. 1. The jury were warranted in finding as the plaintiff contended that the written agreement was not signed until after the accident and that it did not express the terms of the actual letting in force at the time when the plaintiff was injured. Disregarding the agreement there was evidence which permitted the finding that the basement and first floor were let to Kotzen as tenant at will with the right to operate the elevator in connection with the use of the premises let, that the elevator shaft, car or gate were not demised to him, that the right of control thereof remained in the defendants, although they made no repairs to the elevator during Kotzen's tenancy up to the time of the accident or exercised any actual control over it, and that the plaintiff received his injury by reason of the condition in which the gate was maintained. Shea v. McEvoy, 220 Mass. 239, 241, 107 N.E. 945; Conroy v. Maxwell, 248 Mass. 92, 97, 142 N.E. 809; Leydecker v. Brintnall, 158 Mass. 292, 33 N.E. 399; Stewart v. Harvard College, 12 Allen, 58, 66.
The decisive question here presented is whether the maintenance of the gate in such condition that it would not respond automatically to movements of the elevator violated any obligation which the defendants owed to the plaintiff. It was necessary for the plaintiff in order to establish a liability of the defendants to him to prove either a direct relationship between himself and the defendants through an invitation from them or a relationship between himself and the defendants' tenant which put upon the defendants on obligation to the plaintiff with respect to the instrumentality which caused his injury. There was no evidence here of a direct invitation from the defendants. Nor does the evidence warrant a finding that the plaintiff was at the place of his injury through an implied invitation of the defendants by reason of the physical construction of the building or portions thereof or of any apparent preparation or adaptation of the elevator for his use. Compare Gordon v. Cummings, 152 Mass. 513, 517, 25 N.E. 978,9 L.R.A. 640, 23 Am.St.Rep. 846; Marwedel v. Cook, 154 Mass. 235, 237, 28 N.E. 140; Plummer v. Dill, 156 Mass. 426, 427, 31 N.E. 128,32 Am.St.Rep. 463; Hamilton v. Taylor 195 Mass. 68, 71, 80 N.E. 592; Stone v. Lewis, 215 Mass. 594, 597, 104 N.E. 284,50 L.R.A. (N. S.) 471, Ann.Cas. 1914D, 591; Maran v. Peabody, 228 Mass. 432, 117 N.E. 847; Chestnut v. Sawyer, 235 Mass. 46, 50, 126 N.E. 273. The elevator car obviously was designed and furnished for the carriage of freight. There was nothing in its structure or appearance which furnished to the plaintiff an implied invitation from the defendants to use it to facilitate shouting for Kotzen as he had earlier done and intended again to do when he approached it for the second time or to use the elevator opening in order to give freedom of passage to the man who was approaching him. The plaintiff's actual and contemplated use of the elevator or its appurtenances had nothing to do with the transportation of freight. There is nothing to show a past use of the elevator for other purposes acquiesced in by the defendants. Compare Mikkanen v. Safety Fund National Bank, 222 Mass. 150, 109 N.E. 889. The evidence does not permit the inference that the plaintiff was where he was at the time of the accident by reason of any direct or implied invitation from the defendants. It cannot, therefore, be held that any duties based on that ground existed. Plummer v. Dill, 156 Mass. 426, 31 N.E. 128,32 Am.St.Rep. 463; Stone v. Lewis, 215 Mass. 594, 597, 104 N.E. 284,50 L.R.A. (N. S.) 471, Ann.Cas. 1914D, 591; Morong v. Spofford, 218 Mass. 50, 52, 105 N.E. 454, L.R.A. 1915B, 387; Lally v. A. W. Perry, Inc., 277 Mass. 463, 179 N.E. 155.
The plaintiff was, however, upon the premises demised, through the tenant's implied invitation. By virtue of that relationship between plaintiff and tenant there arose an obligation on the part of the defendants to the plaintiff, if he was making an authorized use of the premises, with respect to areas of which the defendants had the right of control. That under our decisions was no different or greater obligation than the defendants owed to their tenant Kotzen it was their duty to keep 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. 929; White v. Beverly Building Association, 221 Mass. 15, 19, 108 N.E. 921; Draper v. Cotting, 231 Mass. 51, 120 N.E. 365; Boudreau v. Johnson, 241 Mass. 12, 134 N.E. 359; Telless...
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