Laskowski v. Manning

• Decision Date: 03 March 1950
• Citation: 91 N.E.2d 231,325 Mass. 393
• Parties: LASKOWSKI v. MANNING et al. LASKOWSKI v. CITIZENS SAV. BANK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

325 Mass. 393

91 N.E.2d 231

LASKOWSKI v. MANNING et al. LASKOWSKI v. CITIZENS SAV. BANK.

Supreme Judicial Court of Massachusetts, Bristol.

March 3, 1950

Argued Oct. 24 1949.

W R. Torphy, Fall River, for plaintiff.

F. D. Mone, North Easton, for defendant Citizens Savings Bank.

W. J. Fenton Taunton (F. M. Silvia, Jr., Fall River, with him) for defendant Manning.

Before QUA, C. J and RONAN, WILKINS, SPALDING and COULIHAN, JJ. [Copyrighted Material Omitted]

WILKINS, Justice.

The plaintiff, on February 5, 1942, was hurt in a fall on ice on the sidewalk on Anawan Street near the corner of Union Street, Fall River and brings these two actions of tort, one against the lessees (hereinafter called the Mannings) of a portion of a building adjacent to the sidewalk and the other against the bank, the owner. There were verdicts for the plaintiff. Near the point of fall there was a doorway leading to a ramp which was included in the premises leased by the bank to the Mannings under a written instrument dated May 28, 1937. Above the doorway on the outside wall of the second floor of the building adjacent to premises of which one Cherry and Webb Company was the occupant, there was a bell which was a part of a sprinkler system for the prevention of fire.

In answer to special questions the jury found that (1) the ice upon which the plaintiff fell was caused to form by water flowing from a defective sprinkler bell, or that part of the sprinkler system to which the bell was attached, and freezing upon the sidewalk as the result of natural causes; (2) the bank retained control of the sprinkler system, including the bell; (3) the defective condition of the bell or the sprinkler system existed as a result (a) of the negligence of the bank but (b) not of the Mannings; and (4) the snow or ice accumulated as the result of the neglect of the Mannings in not removing it.

The defendants excepted to the denial of their motions for directed verdicts and of their motions to enter verdicts in their favor under leave reserved. There was evidence that the ice, which was concealed by a recent light fall of snow, had remained there for two or three days; that it was the only ice in the vicinity and extended from a point directly below the fire alarm bell across the sidewalk to the curbstone; that on two previous occasions water had leaked from the sprinkler system into the bell, thence down the side of the building and across the sidewalk; and that both defendants knew or ought to have known of these leaks, which later were ascertained to be due to a defective valve in back of the bell which allowed water to escape.

Apart from question arising out of an agreement on the part of some tenant to keep the sidewalk free from ice thus caused, the bank would be liable. It owned the building, and the leaking sprinkler system was, or could have been found to be, a source of danger to travellers upon the highway. Cavanagh v. Block, 192 Mass. 63, 65, 77 N.E. 1027, 6 L.R.A., N.S., 310, 116 Am.St.Rep. 220; Woodman v. Shepard, 238 Mass. 196, 199, 130 N.E. 194, 13 A.L.R. 982. See Donahue v. M. O'Keefe, Inc., 255 Mass. 35, 39, 150 N.E. 905; Roland v. Kilroy, 282 Mass. 87, 92, 184 N.E. 367; Bullard v. Mattoon, 297 Mass. 182, 8 N.E.2d 348; Tomasunas v. Khoury, 314 Mass. 754, 51 N.E.2d 325; Hooper v. Kennedy, 320 Mass. 576, 70 N.E.2d 529.

The lease from the bank to the Mannings contained the following: 'Said lessees * * * will save the lessor harmless from all loss and damage occasioned by the use or escape of water upon said premises or by the bursting of pipes or from any claim or damage arising from neglect in not removing snow and ice from the roof of the building or from the sidewalks bordering upon the premises so leased, or by any nuisance made or suffered to be made by the lessees on the premises over which they have control, or which is within their ability and power to prevent and eliminate * * *; and will hold the lessor harmless and indemnified against any injury, loss or damage to any person or property on said premises.' The Mannings would be liable if the plaintiff's injuries were caused by neglect to perform their obligations under the lease. Wixon v. Bruce, 187 Mass. 232, 72 N.E. 978, 68 L.R.A. 248; Coman v. Allen, 198 Mass. 99, 103, 83 N.E. 1097, 14 L.R.A., N.S., 950; Cerchione v. Hunnewell, 215 Mass. 588, 102 N.E. 908, 50 L.R.A., N.S., 300; Brazinskos v. A. S. Fawcett, Inc., 318 Mass. 362, 266-267, 61 N.E.2d 105. See Leydecker v. Brintnall, 158 Mass. 292, 297, 33 N.E. 399. But this would not prevent the bank also from being liable to the plaintiff if the bank could have been found to have retained control of the sprinkler system and bell. Follins v. Dill, 221 Mass. 93, 98, 108 N.E. 929; Donahue v. M. O'Keefe, Inc., 255 Mass. 35, 39, 150 N.E. 905; Clarke v. Ames, 267 Mass. 44, 46-47, 165 N.E. 696. See Gilroy v. Badger, 301 Mass. 494, 496, 17 N.E.2d 702; Nichols v. Donahoe, 309 Mass. 241, 242, 34 N.E.2d 681.

There was ample evidence from which the bank could have been found to have retained such control. Marston v. Phipps, 209 Mass. 552, 555, 95 N.E. 954; Hilden v. Naylor, 223 Mass. 290, 292-293, 111 N.E. 848; Conroy v. Maxwell, 248 Mass. 92, 97, 142 N.E. 809; Sordillo v. Fradkin, 282 Mass. 255, 184 N.E. 666; MacDonald v. Adamian, 294 Mass. 187, 191, 200 N.E. 888. Of such evidence we need mention only that the sprinkler system ran throughout the building and was designed to protect the entire edifice from fire. It could have been found that the bank procured and paid for all the repairs to the sprinkler system that were made (Marston v. Phipps, 209 Mass. 552, 555, 95 N.E. 954), while there was nothing connecting any tenant with responsibility for its operation. Besides the Mannings, other tenants were the Anawan Garage and the Central Sign Company. Whether the Cherry and Webb Company was a subtenant of the Anawan Garage was an unimportant minor issue, and the bank was not harmed by the exclusion of evidence it offered apparently to prove that fact. It appeared that the bank was not an occupant of any part of the building, and that all the floors were leased to others. The excluded evidence had no greater tendency to show that the bank had given up control of the sprinkler system.

Enough has been said to show that there was no error in the denial of the bank's requests for instructions numbered 5 and 6 which were at variance with the principles herein expressed as to the retention of control by the bank. The same is true of the exception to that part of the charge in which the judge said that if the jury found that the bank retained control if the sprinkler system, it was conceivable that they might find for the plaintiff against the bank. The exception to the portion of the charge relating to the third question submitted to the jury does not merit discussion.

There likewise was no error in the denial of the bank's motions or in the refusal of its requests for instructions numbered 2, 10, and 11, which were based upon a supposed exoneration of the bank in the covenants by the Mannings in the lease.

We are confirmed in this conclusion by a consideration of those covenants. The Mannings contend, and we think rightly, that the indemnity provision should not be construed to cover the removal from the sidewalk of ice forming as the result of the bank's negligence. In Boston & Maine Railroad v. T. Stuard & Son Co., 236 Mass. 98, 104, 127 N.E. 532, 534, it was said 'A contract of the nature here involved will not be considered as indemnifying one against his own negligence, or that of his employes, unless its express language requires it. Such an intent must unequivocally appear, and words of general import are not sufficient. It is not to be assumed in the absence of clear stipulation that a contract is to be construed as creating a result so far reaching, and involving consequences which may be so hazardous and momentous.' New York Central & Hudson River Railroad Company v. T. Stuart & Son Co., 260 Mass. 242, 249-250, 157 N.E. 540; Farrell v. Eastern Bridge & Structural Co., 291 Mass. 323, 197 N.E. 68. See Ortolano v. U-Dryvit Auto Rental Co., Inc., 296 Mass. 439, 6 N.E.2d 346; American Sandpaper Co. v. Waltham Factories, Inc., 299 Mass. 369, 12 N.E.2d 827. See also Gast v. Goldenberg, 281 Mass. 214, 183 N.E. 257. This is not a case where it is necessary, in order to give effect to the lessee's undertaking, to construe his promise as comprehending an indemnity against the lessor's negligent acts as to a part of the property in the lessor's control, and we do not accept that...