Gilbert v. Thierry

• Decision Date: 10 May 1946
• Citation: 66 N.E.2d 712,319 Mass. 492
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: EARL R. GILBERT & another v. LOUIS S. THIERRY.

319 Mass. 492

66 N.E.2d 712

EARL R. GILBERT & another v. LOUIS S. THIERRY.

Supreme Judicial Court of Massachusetts, Middlesex.

May 10, 1946

October 5, 1945.

Present: FIELD, C.

J., LUMMUS, QUA DOLAN, & WILKINS, JJ.

Nuisance. Landlord and Tenant, Nuisance, Landlord's liability to tenant or his family or his invitee.

Evidence justified a finding that the owner of an apartment building created and maintained a nuisance toward the occupants of one of the apartments through smoke, gas and fumes when, because of a refusal of a

Federal was agency to allow him to use fuel oil, he converted an oil burning furnace into a coal burning furnace, but made use of flues too small for burning coal and failed to install additional flue piping which would have carried off the smoke, gas and fumes.

BILL IN EQUITY filed in the Superior Court on January 13, 1944. The suit was heard by Forte, J.

A. E. Lewis, for the defendant. W. H. Lewis, Jr., for the plaintiffs.

LUMMUS, J. On February 20, 1943, the male plaintiff took a lease from the defendant of an apartment on the street floor of an apartment house in Watertown owned by the defendant. The female plaintiff is the mother of the male plaintiff, and lived with him in the apartment. The lease was for the term of one year and five months beginning April 1, 1943, and thereafter from year to year until either party should give a prescribed notice to terminate the lease. The lease provided that the apartment was to be "heated, barring accidents and circumstances beyond the control of the lessor Oct. 1 to May 30 of each year." Prior to the fall of 1943 the apartment house was heated satisfactorily by two oil burning furnaces in the basement, one of them immediately below the apartment occupied by the plaintiffs.

In the summer of 1943 conversion of the heating system to coal was made necessary by the refusal of the Federal Office of Price Administration to give the defendant any ration for fuel oil. The flues of the chimney were large enough when oil was burned, but not when coal was burned. The result was that when the furnace immediately under the apartment occupied by the plaintiff began to burn coal on or about September 30 1943, the defendant could procure no coal except soft coal and the apartment was so filled with smoke, coal gas and fumes that the plaintiffs could hardly live there. They were forced to keep their widows open even in cold weather, and to remain out of the apartment as much as possible. They were made ill by the smoke, gas and fumes, and their household furnishings and effects were ruined. This situation continued until in February, 1944, the defendant was permitted by the Office of Price Administration to reconvert the furnaces so as to burn oil. The trouble then ceased.

This bill was filed on January 13, 1944. The plaintiffs prayed for an injunction against the continuance of the nuisance, and damages. Before the hearing took place on June 21, 1944, the nuisance had ceased, and an award of damages had become the only...