Jacovides v. Chaletzky

• Decision Date: 08 February 1955
• Citation: 124 N.E.2d 259,332 Mass. 225
• Parties: Garifalla JACOVIDES v. David B. CHALETZKY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 259

124 N.E.2d 259

332 Mass. 225

Garifalla JACOVIDES v. David B. CHALETZKY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 3, 1955.

Decided Feb. 8, 1955.

Nathan Moger, Boston (George A. Verde, Boston, with him), for defendant.

Ellis F. Brown, Boston (Constantine M. Bucuvalas, Boston, with him), for plaintiff.

Before QUA, C. J., and LUMMUS, WILKINS, SPALDING and COUNIHAN, JJ.

WILKINS, Justice.

On April 3, 1952, the plaintiff, a tenant at will of the defendant of a second story apartment in a house on Elmwood Street in the Roxbury district of Boston, was hurt by falling through the floor of a piazza, a part of the rented premises, which had for its only entrance a doorway from the plaintiff's apartment. In this action of tort for negligence the judge denied the defendant's motion for a directed verdict. The jury returned a verdict for the plaintiff, and the case is here on the judge's report of his action on the motion.

The plaintiff seeks to establish the defendant's liability on the ground that the tenancy falls within the third class of cases outlined in Fiorntino v. Mason, 233 Mass. 451, 453, 124 N.E. 283, under which the landlord agrees to 'maintain the premises in a condition of safety on his own responsibility and without reference to notice from the tenant of defective conditions, and by virtue of the agreement for letting shall have and constantly retain such possession of the premises as is necessary for that purpose.' At the arguments the defendant stated without challenge by the plaintiff, that the only decision in our reports where a plaintiff has prevailed in this class of cases is Crowe v. Bixby, 237 Mass. 249, 129 N.E. 433. We have said that such an undertaking, when applied to all portions of a tenement, 'involves a degree of retention of control by the landlord which would be a surprise to most tenants. It must be seldom indeed that such an agreement is actually made.' Collins v. Humphrey, 314 Mass. 759, 761, 51 N.E.2d 327, 328.

If there is evidence of an agreement for a tenancy of the third class it must be found in the testimony of the plaintiff as to her conversations with George Chaletzky, the defendant's son and his admitted agent authorized to make agreements relating to the property, to supervise repairs, and to collect rents. When the defendant became owner in May, 1950, the plaintiff had been a tenant for some years. About June 1, 1950, George came to the premises and informed her that the defendant had bought the house. At that time George said in substance, 'I keep the house in good repair and keep it safe all the time. Don't worry * * * I promise * * * in good repair.' The plaintiff then paid the rent, which was $16 a month. On cross-examination she testified that George said, 'I keep it repaired; I keep it good, and I will keep it safe. * * * I promise you.' At this time there was, according to the plaintiff's testimony, a hole in the piazza 'two fingers' wide and 18 inches long which she pointed out to George. On a later occasion when he came to collect the rent he went onto the piazza and said, 'Is good, no danger.'

We are unable to distinguish this case from Collins v. Humphrey, 314 Mass. 759, 761, 51 N.E.2d 327. There the landlord agreed that 'he would take full responsibility and would make the place safe and sound,' and 'was going to take charge of everything.' The tenant 'was not to do any repairs whatsoever.' The landlord 'was to do the repairs and keep [it] in good condition' and 'would take the responsibility and keep it in good condition.' In that case, it was held that the plaintiff failed to show every essential element of ...