Grasselli Dyestuff Corp. v. John Campbell & Co.

• Decision Date: 06 April 1927
• Parties: GRASSELLI DYESTUFF CORPORATION v. JOHN CAMPBELL & CO. FIRST NAT. BANK OF BOSTON et al. v. SAME. GRASSELLI DYESTUFF CORPORATION v. FIRST NAT. BANK OF BOSTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

259 Mass. 103

156 N.E. 17

GRASSELLI DYESTUFF CORPORATION

v.JOHN CAMPBELL & CO.

FIRST NAT. BANK OF BOSTON et al.

v.SAME.

GRASSELLI DYESTUFF CORPORATION

v.FIRST NAT. BANK OF BOSTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

April 6, 1927.

Exceptions from Superior Court, Suffolk County; F. T. Hammond, Judge.

Separate actions of tort by the Grasselli Dyestuff Corporation and by the First National Bank of Boston and others, trustees, against John Campbell & Co., and by the Grasselli Dyestuff Corporation against the First National Bank of Boston and others, trustees, to recover damages resulting from freezing of water and bursting of a hot water heater in a building. Verdict was directed for said Campbell & Co. in cases against it, and plaintiffs, the Grasselli Dyestuff Corporation and the First National Bank, etc., except. Verdict for the Grasselli Dyestuff Corporation in action against the First National Bank, and the latter excepts. Exceptions overruled.

T. W. Proctor and G. S. Fuller, both of Boston, for First Nat. bank.

R. H. Wiswall, of Salem, for Grasselli Dyestuff Corporation.

C. H. Cronin, of Boston, for John S. Campbell.

CROSBY, J.

There are three actions of tort to recover damages resulting from the freezing of water and the bursting of a hot water heater in a building. The trustees named in the second and third suits were the owners of adjoining buildings, numbered 32 and 33 India street, in Boston. The Grasselli Dyestuff Corporation (hereinafter referred to as the Grasselli Company) was a sublessee of certain parts of the building at 32 India street including the basement.

[1] John Campbell & Company (hereinafter referred to as the Campbell Company) before October 1, 1924, was a subtenant of the second and third floors of the building at [259 Mass. 106]33 India street, and was supplied with heat by the Kessel Company, the lessee of the whole building. The heater was located on the first floor and was connected with pipes and radiators on the first and second floors. The lease of Kessel Company expired at the end of September, 1924, and it then vacated the premises. About that time the manager of the Campbell Company arranged with a representative of the owners for the company to remain in the building until it could find another place, and asked for permission to use the heater; thereupon, on September 30, a representative of the owners wrote the Campbell Company that it could continue in occupation until a tenant was obtained for the entire building, and ‘it is understood and agreed that you will heat yourselves at no expense to the owners. * * * You have our permission to enter the first floor so that you can run the heater.’ The Campbell Company continued to occupy the second and third floors as a tenant at will, and paid the rent each month in advance.

On October 23, by direction of the owners, the water was shut off and drained from all the pipes, except those from the heating system and water supply pipes running to the second floor. On November 29, the Campbell Company wrote to the owners' agent inclosing a check for the rent for the following month and stating:

‘Please take notice that we are vacating the premises at 33 India street on the 31st of December, 1924.’

Between December 17 and 20, the Campbell Company moved from the building, leaving no one in it after the latter date. There was no evidence that it notified the owners of its intention to vacate the premises before December 31, or that it had so vacated. They had no knowledge that it had actually moved out on December 20. On the morning of December 26 it was discovered that water was escaping from a break in the jacket of the heater, caused by the freezing of water in the pipes; that such freezing rendered the stop cock connecting the heater with the city water supply defective. The result was, that water ran through the heater and into the basement of 32 India street, damaging the goods stored there by the Grasselli Company. The actions brought by that company against the owners and against the Campbell Company are for the recovery of the damages so sustained. The action brought by the owners of the building against the Campbell Company is for the recovery of damages sustained by them because of the alleged negligence of the defendant in failing to maintain a fire in the heater and thereby keep the water from freezing.

The only parts of the building rented to the Campbell Company were the second and third floors. The heater was no part of the premises so rented. The permission given to run the heater was merely a license to use it which, so far as appears from the evidence, never was exercised by the Campbell Company. No rent was to be paid for such use. The most that can be said is that a mere license to use the heater was given...