Koleshinski v. David

• Decision Date: 09 January 1952
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: KOLESHINSKI v. DAVID et al.

Page 262

103 N.E.2d 262

328 Mass. 276

KOLESHINSKI v. DAVID et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Dec. 3, 1951.

Decided Jan. 9, 1952.

F. G. Lichtenstein, Boston, for plaintiff.

D. H. Fulton, Boston, for defendant Sally David.

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

RONAN, Justice.

This is an action of tort to recover for personal injuries alleged to have been sustained by the plaintiff on March 3, 1947, when the end of one of the floor boards of the front piazza of a single dwelling house, which was owned by the defendant Sally David and occupied by the plaintiff, broke off and split. The original count of the declaration was waived and a new count was added during the trial subject to the exceptions of the defendants. This count alleged a contractual agreement to make repairs to the outside of the house, the negligent making of repairs, and the resulting injury to the plaintiff. The judge directed a verdict for both defendants subject to the plaintiff's exception.

The plaintiff quit his employment at a hospital with which the defendant Dr. David was connected in November, 1943. The rent of the dwelling in which he lived had been included in his wages while he was engaged at the hospital. It therefore became necessary to make now arrangements if he was to continue to occupy the dwelling. The plaintiff testified that Dr. David and he agreed upon the rental and that the plaintiff was to make the inside repairs, and that Dr. David said that he would do all the outside repairs. Later he testified that Dr. David told him that if he wanted any inside repairs he could do them himself. On cross-examination the plaintiff testified that what Dr. David said was, 'If you want to do inside, I do all the work outside. If you want to do inside, anything for yourself, paper, whitewash, do it for yourself. * * * It is fair enough for you.' But as to outside, Dr. David said, 'I am going to do everything.' The plaintiff also testified that he was not bound to do any inside repairing, that Dr. David could not tell him what to do, that Dr. David told (me he going to do,' but that he could not tell Dr. David what to do, and that Dr. David did not have to make repairs as it was his property. The plaintiff solemnly asserted that this was a true statement of his bargain with Dr. David, no matter what he had previously testified to, and that was the way he wished to leave it. On redirect examination he testified that Dr. David said, 'You can make whatever repairs you want inside, I will only make the outside repairs.' On recross-examination he testified that he did not wish to change the testimony which he had already asserted showed the terms of the bargain.

The defendants contend that the plaintiff is bound by his testimony that Dr. David was not required to make any repairs, and that this was the view which the plaintiff finally adopted and preferred to any other testimony has had given on that point. It is to be noted that the plaintiff, when asked what the parties said at the time of the letting, always stated that Dr. David said that he would make the outside repairs. The jury saw and heard the plaintiff. They could find that Dr. David promised to make the outside repairs, and that the testimony of the plaintiff that Dr. David did not have to repair was an opinion based not upon the promise but upon the fact that the plaintiff thought that he could not compel Dr. David to repair the property or, as he expressed it, 'I can't tell him to do outside work. * * * It was his property.' See Collins v. Humphrey, 314 Mass. 759, 762, 51 N.E.2d 327; Cerez v. Webber, 318 Mass. 703, 706, 63 N.E.2d 889. In any event, after he testified that Dr. David was not required to repair, he repeated in redirect examination that Dr. David said he would make the outside repairs and on recross-examination that he did not want to change what he had said in cross-examination. In this situation it cannot be said that all the testimony that the plaintiff had given as to the terms of the letting had been withdrawn and that there had been substituted therefor his statement that Dr. David was not required to repair. In other words, the situation was not the same as if at the end of the trial this statement alone constituted all the evidence on this phase of the case. The case comes not within the principle of Sullivan v. Boston Elevated Railway, 224 Mass. 405, 112 N.E. 1025, but within the class of decisions illustrated by Ruane v. Doyle, 308 Mass. 418, 32 N.E.2d 244, Fitzgerald v. McClymont, 314 Mass. 497, 50 N.E.2d 638, and Shopneck v. Rosenbloom, 326 Mass. 81, 93 N.E.2d 227.

There was evidence, viewed in the light most favorable to the plaintiff, that when the plaintiff became a tenant in 1943 this small piazza, which was only about five or six feet long and six or seven feet wide, was in a reasonably safe condition but that in 1945 the gutters had fallen down allowing water from the roof to drop upon a concrete step which led down from the piazza to the yard. The ends of the piazza floor boards projected four or five inches over this step and became split. There were cracks in some of the boards in the middle of the piazza. The stringers supporting the floor were all rotten. The piazza became shaky and springy and yielded as one walked over it. Dr. David was frequently about the premises. At times he examined the piazza with the plaintiff. He knew it needed repairs and so advised his sister, the defendant Sally David. Dr. David in the fall of 1946 sent a carpenter to repair the piazza who did nothing but nail down the floor boards to the stringers. The piazza after this work was not as bad as it had been but it was still shaky. The plaintiff told Dr. David that the piazza was not safe and to do the job right the stringers ought to have been removed as they 'get rotten.' Dr. David replied, 'it is safety. He go and try. * * * Go yourself. It is...