Kraus v. Webber

• Decision Date: 07 June 1971
• Citation: 270 N.E.2d 789,359 Mass. 565
• Parties: John F. KRAUS, Jr. v. Bethel WEBBER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 789

270 N.E.2d 789

359 Mass. 565

John F. KRAUS, Jr. v. Bethel WEBBER.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 4, 1971.

Decided June 7, 1971.

Edward T. Robinson, Boston, for defendant.

Francis J. Gallagher, Jr., Marshfield, for plaintiff.

Before TAURO, C.J., and SPALDING, CUTTER, QUIRICO and BRAUCHER, JJ.

SPALDING, Justice.

This is an action of tort to recover for personal injuries sustained by the plaintiff by reason of a defect in a fire escape on premises owned by the defendant. The jury returned a verdict for the plaintiff which was recorded under leave reserved. Thereafter the judge granted the defendant's motion to enter a verdict for the defendant. The plaintiff's exception to this action presents the sole question for decision. The test to determine the correctness of the ruling is the same as in the case of a motion for a directed verdict. Berwick & Smith Co. v. Salem Press, Inc., 331 Mass. 196, 117 N.E.2d 825.

We summarize the evidence most favorable to the plaintiff. The plaintiff, John F. Kraus, Jr., was employed by a moving company to move the belongings of one Arthur F. O'Brien and his family into premises owned by the defendant. O'Brien's wife is the daughter of the defendant. The O'Briens had just rented the second and third floors of the premises from the defendant as 'paying tenants.' The defendant was to occupy the first floor. A wooden fire escape, also described as a stairway with a piazza or porch, led directly from the second floor to the ground and was part of the demised premises.

The movers initially took some of the furniture up the front stairs. However, because it was difficult, they asked and were given permission by the O'Briens to use the stairway in question to take furniture up to the second floor. The stairway had no visible defects. It was examined by a fellow mover who had twenty-eight years of experience and he could find no defects. Ten to fifteen trips were made up the stairway with heavy furniture before the accident from which this action arises occurred. The plaintiff and another mover were taking a bureau up the stairway when the upper portion of it collapsed beneath them. The plaintiff was seriously injured. A finding was warranted that the collapse was due to a hidden defect in the stairs. There was conflicting testimony as to whether the defendant had knowledge of this defect, and, if she did, whether she warned her tenants of it.

It is settled in this Commonwealth that 'if the landlord knows of some hidden defect in the demised premises, of which the tenant is ignorant, then the obligation rests on the landlord to give notice thereof to the tenant, and for injuries arising from such failure of duty, the landlord may be held liable in damages.' Stumpf v. Leland, 242 Mass. 168, 171, 136 N.E. 399, 400, a leading case which contains an exhaustive discussion of the subject. That case makes clear that nothing short of actual knowledge of the hidden defect on the part of the landlord coupled with a failure to warn the tenant of it will suffice to create liability. There was ample evidence that the defect in question here was hidden. A carpenter who worked for the defendant described it as follows: '(T)he inner three horses on the stairway were gone, were rotted behind the baseboard. Those are concealed by that board; the baseboard is always painted so therefore it never shows rot.' This defect in the 'horses' was just below the top stair. The plaintiff was a business invitee of the tenants of the defendant and no contention is made to the contrary. Thus his rights against the defendant were the same as the tenants' his invitors. The questions presented are whether the defendant had actual knowledge of the hidden defect, and if she did, whether she warned the tenants of it.

1. The defendant argues that there was no evidence which would warrant a finding that the defendant knew of the existence of a hidden defect. We disagree. The plaintiff introduced the following testimony of the defendant at a previous trial (which resulted in a mistrial): Q. 'And at the time that you were letting this property to them, you knew that the stairway was unsafe?' A. 'Yes. * * * But they didn't have to use it, sir. They had no need to use it.' THE JUDGE: 'The...