Hannon v. Schwartz
| Decision Date | 29 November 1939 |
| Citation | 23 N.E.2d 1022,304 Mass. 468 |
| Parties | MARY A. HANNON v. ETHEL SCHWARTZ. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
November 13, 1939.
Present: FIELD, C.
J., DONAHUE LUMMUS, DOLAN, & RONAN, JJ.
Landlord and Tenant, What constitutes premises let, Landlord's liability to third person, Awning. Negligence, One owning or controlling real estate. Evidence, Admissions, Relevancy. Agency, What constitutes. Husband and Wife.
In the absence of anything to show the contrary, an awning attached to the front wall of a store on the ground floor of a building abutting a sidewalk was part of the store and not in control of the owner of the building after a letting of the store to a tenant; and the owner was not liable on the ground of negligence to a traveller injured by coming into contact with a chain hanging from the awning.
The fact that the owner of a building had procured liability insurance covering the entire building did not show that he was in control of a portion let to a tenant.
The mere relation of husband and wife is not sufficient to show that one spouse is acting as agent for the other.
A direction made in behalf of the owner of a building that after damage by fire the cloth be removed from a sidewalk awning attached to a part of the building let to a tenant did not show that the awning over a year previous was in control of the owner rather than in that of the tenant.
TORT. Writ in the Superior Court dated September 16, 1935. A verdict for the defendant was ordered by M. Morton, J. The plaintiff alleged exceptions.
B. J. Killion, (J.
F. Connelly with him,) for the plaintiff.
S. P. Sears, (E.
R. Langenbach with him,) for the defendant.
The single question in this case is whether there was evidence that the defendant was in control of an awning, located in front of a store upon her premises, when the plaintiff, on August 6, 1935, while a pedestrian on the highway, came in contact with a chain attached to the awning.
The defendant became the owner of these premises in 1931. They consisted of a store upon the first floor and tenements upon the second and third floors, the one on the second floor being occupied by the defendant. The store was leased to a tenant, in 1932 who put up some part of the awning but not the frame. This tenant quit the premises after an occupancy of four months and left the awning attached to the building. There were subsequent tenants of the store and at the time of the accident it was occupied by a tenant at will whose tenancy had commenced on January 3, 1935. There was evidence that for more than two years prior to the accident the awning had never been rolled up against the building, as required by the regulations of the building department of Boston, and that it extended over the sidewalk at a height of six and one half feet, which was lower by a foot than the height permitted by said regulations.
The jury could find that a chain ran from a crossbar of the awning frame to the side of the building where it was connected with a U-shaped metal piece fastened to the building by screws, but that the screws, on account of the decayed condition of that portion of the building in which they were inserted, were unable to hold the metal piece and permitted it and the chain to fall and hang suspended from the crossbar. The accident happened when the chain and the metal plate were in this position. The defendant had a liability policy covering the entire premises in which the store was located.
The declaration set forth a cause of action in negligence and the case was tried upon that basis. The defendant was not charged with the maintenance of a nuisance. Upon the pleadings and evidence it was necessary for the plaintiff to prove that the awning at the time of the accident was in...
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