Greenway Wood Heel Co. v. John Shea Co.

• Decision Date: 06 February 1943
• Citation: 46 N.E.2d 746,313 Mass. 177
• Parties: GREENWAY WOOD HEEL CO., Inc., v. JOHN SHEA CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

313 Mass. 177

46 N.E.2d 746

GREENWAY WOOD HEEL CO., Inc.,

v.JOHN SHEA CO.

Supreme Judicial Court of Massachusetts, Essex.

Feb. 6, 1943.

Exceptions from Superior Court, Essex County; Warner, Judge.

Action by the Greenway Wood Heel Company, Inc., against the John Shea Company for damage to personalty caused by fire and water, as result of fire which occurred in building occupied by the plaintiff for storage purposes. The trial judge allowed defendant's motion for directed verdict, subject to plaintiff's exception. The plaintiff also excepted to admission and exclusion of evidence.

Exceptions overruled.

Before FIELD, C. J., and DONAHUE, QUA, COX, and RONAN, JJ.

H. F. Wood, and L. J. O'Malley, both of Boston, for plaintiff.

E. B. Hanify and W. H. Daly, both of Boston, for defendant.

COX, Justice.

The plaintiff, as a tenant of the defendant, occupied a two-story building from 1937 for the storage of personal property. In March, 1940, the plaintiff's personal property was damaged by fire and water as the result of a fire that occurred in the building, and this action is to recover for that damage. At the close of the plaintiff's evidence, the trial judge allowed the defendant's motion for a directed verdict, subject to the plaintiff's exception. The plaintiff also excepted to the admission and exclusion of evidence, hereinafter referred to.

At the beginning of the plaintiff's tenancy there was a sprinkler system in the building, which was controlled from an adjoining small building, described as the gate valve house. There is no contention that this house was a part of the rented premises. A fire alarm, wired from this house to the Methuen fire station, was designed to operate when water from the gate valve house flowed into the sprinklers in the storage building. Four days before the fire occurred, an employee of the defendant, while in this house, found that the sprinkler system had ‘tripped,’ which meant that there was a leak or split in the sprinkler pipes in the storage building which allowed air to go out of the pipes, with the result that, the air pressure having been released, water had gone into the sprinkler system. He found that two pipes in the storage building had split, whereupon he closed the valve in the gate valve house, drained the sprinkler system, reported the matter to the defendant and was instructed to fix the pipes immediately. On the following day he took out the split pipes and obtained pieces of pipe with which to replace them, and worked on the repairs the next day, which was Saturday. The fire occurred on the Monday following, before he had replaced the pipes.

It could have been found that plugs could have been inserted where each split pipe was removed, and that if this had been done the sprinkler system would have worked except where the two lengths of pipe had been removed. No plugs were inserted. With the valve in the gate valve house closed, no water could go into the sprinkler system. The defendant admitted that no notice was given to the fire department that the system had been shut off, and the witness who made the repairs testified that he did not notify the plaintiff or any one connected with it that he had shut off the system. There was evidence that four hours would have been a liberal allowance of time in which to replace the split pipes. At the time of the fire, no alarm sounded at the fire station over the wire from the gate valve house, and there was evidence that, if the system had been in proper condition on that day, the alarm would have sounded. The fire department was notified by some one who came to the fire station. The fire chief was among the first to arrive at the building and saw the fire burning very near a loading platform door. There was no water coming from the sprinkler system, and the fire had started six to eight feet from the nearest sprinkler head. The opinion of the fire chief was that, if the system had been in operation, the fire would have been confined to the locality around its origin.

The evidence as to the nature of the plaintiff's tenancy came from its treasurer who testified that he had ‘nothing to do with the sprinkler system and neither * * * [he] nor his company had anything to do with the so-called sprinkler house’; that in 1937, when he conferred with a representative of the defendant relative to renting the storage building, the ‘plaintiff’ agreed to hire the building by the year, and that ‘we couldn't hire this building for one week or ten days, we have an oral agreement with him [the defendant's representative] that that building is ours. Each year we have this building.’

The first count of the declaration contains allegations as to the tenancy, the removal of the broken pipes by an employee of the defendant and the failure to notify the plaintiff or the fire department that the sprinkler system was shut off, and also allegations that ‘by reason of the negligence of the defendant in shutting off said sprinkler system, and in failing to notify the Methuen Fire Department that the sprinkler system was shut off, the fire was not extinguished in that part of the building where it started’ but spread beyond, thereby causing damage to the plaintiff. The second and third counts each allege that ‘it was the duty of the defendant to keep said sprinkler system in repair.’ The negligence alleged in the second count is the failure of the defendant to notify the plaintiff or the fire department that the sprinkler system was not in working condition, and in the third count, the failure to notify the plaintiff or the fire department that the sprinkler system was not in working condition, and in addition, ‘the failure of the automatic alarm to sound’ in the fire station. The concluding allegation is that all three counts are for the same cause of action.

The plaintiff's cause of action is based upon negligence. The only evidence as to the nature of the tenancy and what was comprised within it has been recited. There is not even a suggestion in the bill of exceptions that the control of the sprinkler system did not remain in the defendant. The plaintiff contends in this court that ‘the relation of landlord and tenant between the parties created certain rights for the benefit of the plaintiff and imposed certain duties and obligations on the defendant. The defendant, as landlord, had exclusive access to and control of the gate valve house, * * * made repairs and otherwise had exclusive control and supervision of the sprinkler system.’ We think it is apparent that one theory upon which the case was tried was that of negligence arising out of the failure of the defendant, as landlord, to repair or keep in repair a part of the rented premises over which it retained control. There is nothing in the bill of exceptions to warrant the conclusion that the defendant was under any obligation to keep the sprinkler system in repair, or that there was any agreement, either express or implied, by which the landlord was bound to keep it in repair, apart from the duty arising from its control of the system.

Apart from the matter to be considered hereinafter, the plaintiff must recover,if at all, on the familiar principle that, in the absence, as here, of express agreement, a landlord owes a duty-breach of which would constitute negligence-to a tenant, and to persons using the premises in his right, to exercise reasonable care to keep the part of the premises remaining in the control of the landlord in the condition with respect to safety in which they were, or to a person of ordinary observation would appear to be, at the time of the letting. The plaintiff, therefore, in order to recover on this aspect of the case, had the burden of proving that, at the time its tenancy began, the condition that caused its damage did not or did not appear to exist. Without evidence of the condition or appearance of the sprinkler system at that time, there is nothing upon which to base a possible breach of the defendant's duty. Shwartz v. Feinberg, 306 Mass. 331, 333, 334, 28 N.E.2d 249, and cases cited. A similar obligation has been recognized with respect to appliances on the rented premises, where the appliances remain in the landlord's exclusive control. Beauvais v. Springfield Institution for Savings, 303 Mass. 136, 140, 141, 20 N.E.2d 957, 124 A.L.R. 611, and cases cited. There is nothing to show when in 1937 the plaintiff first became a tenant. The only finding warranted upon the evidence is that the tenancy was oral, and an oral letting creates a tenancy at will. G.L.(Ter.Ed.) c. 183, § 3. If, as the plaintiff contends, the tenancy, although oral, was from year to year, it would end without notice to quit at the end of the term. Adjmi v. Ginter Restaurant Co., 291 Mass. 224, 225, 226, 196 N.E. 842. Not only does it not appear when the last tenancy of the plaintiff came into existence, but there is nothing to show what the condition of the sprinkler system was at that time, whenever it was. Accordingly,...