Green v. Pearlstein

• Decision Date: 28 January 1913
• Citation: 100 N.E. 625,213 Mass. 360
• Parties: GREEN v. PEARLSTEIN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

213 Mass. 360

100 N.E. 625

GREEN v. PEARLSTEIN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 28, 1913

COUNSEL

Eyges Wyner & Freedman, of Boston, for plaintiff.

Geo. C Curry, of Boston, for defendants.

OPINION

SHELDON J.

The plaintiff put in evidence that the defendant Geller had taken from the other defendant a lease of the house which contained the tenement hired by her husband, and was in control thereof at the time of her injury. There was no dispute that her husband's hiring was from Geller. The rest of Geller's testimony might have created some suspicion as to Mrs. Pearlstein's motive in giving the lease to him, but did not tend to show that he had not in fact taken possession of the leasehold interest, or that he was not in control of the premises. If so, the motive of the lessor was not material. Curtis v. Galvin, 1 Allen, 215, 216; Pratt v. Farrar, 10 Allen, 519. What her husband said to Dr. Lazarus could not be evidence against her, nor was she bound by the way in which receipts for water rates were taken, unless in each case there had been further evidence to connect her therewith. It follows that on the plaintiff's own showing the verdict in favor of Mrs Pearlstein was rightly ordered. Mellen v. Morrill, 126 Mass. 545, 30 Am. Rep. 695; Rice v. Boston University, 191 Mass. 30, 77 N.E. 308; Coman v. Alles, 198 Mass. 99, 83 N.E. 1097, 14 L. R. A. (N. S.) 950; Taylor v. Loring, 201 Mass. 283, 87 N.E. 469.

But as to the defendant Geller, the case stands differently. In spite of some of the answers given by the plaintiff's husband on cross-examination, the jury could find that Geller had negligently failed to keep the ceiling of which a part fell upon the plaintiff in as good condition as it had appeared to be when her husband hired the tenement, and so the case is not governed by the decisions upon which the defendant relies. Woods v. Naumkeag Steam Co., 134 Mass. 357, 361, 45 Am. Rep. 344; Quinn v. Perham, 151 Mass. 162, 23 N.E. 735; Moynihan v. Allyn, 162 Mass. 270, 38 N.E. 497; Hannaford v. Kinne, 199 Mass. 63, 85 N.E. 187.

There was evidence that the ceiling was over a common passageway which he was bound to use due care to keep in as good condition as it appeared to be when he let the tenement, and the plaintiff could be found to have been in the exercise of due care. Ward v. Blouin, 210 Mass. 140, 96 N.E. 61; Callahan v. Dickson, 210 Mass. 510, 96 N.E. 1029....