Leavitt v. Glick Realty Corp.

• Decision Date: 25 July 1972
• Parties: Anna S. LEAVITT, administratrix, v. GLICK REALTY CORPORATION et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 786

285 N.E.2d 786

362 Mass. 370

Anna S. LEAVITT, administratrix, v. GLICK REALTY CORPORATION et al.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Feb. 7, 1972.

Decided July 25, 1972.

Richard A. Robinson, Worcester, for plaintiff. Stanley B. Milton, Worcester (William C. O'Neil, Jr., Worcester, with him), for Glick Realty Corp.

Richard P. Kelleher, Worcester, for Samuel Glick and others.

John F. Buckley, Worcester, for Selig Glick.

Before SPIEGEL, REARDON, QUIRICO, and HENNESSEY, JJ.

REARDON, Justice.

These are substitute bills of exceptions arising out of an action of tort brought by Anna S. Leavitt, administratrix of the estate of Dave Shepatin, to recover for Shepatin's conscious suffering and death as a result of a fire on June 9, 1967, in a building in Worcester. The deceased was a roomer in the building. The several defendants are Glick Realty Corporation, the owner of the building; Samuel Glick, president; Sidney Glick, treasurer; and Selig Glick, clerk, respectively, of the defendant corporation. The action was tried before a Superior Court judge and jury. The plaintiff's second amended declaration contained eight counts, the first four for wrongful death against each defendant, and the other four alleging conscious suffering. The jury returned a verdict for the plaintiff on the count for wrongful death against the corporation. The judge granted motions for directed verdicts in favor of the individual defendants on the counts for wrongful death, and also for all the defendants on the counts alleging conscious suffering. The plaintiff excepted to the allowance of these motions. The defendant corporation excepted to the denial of its general motion for a directed verdict and to the denial of its motion for a directed verdict on the count on which a verdict for the plaintiff was returned. The corporation also excepted to the admission of certain evidence to which we shall allude and to certain other actions of the court on requests for rulings by both parties. The facts are complex and we shall not refer to them in extenso in view of our disposition of this case.

1. Over the corporation's objection and exception Samuel Glick was asked, 'Did the Glick Realty Corp. insure the building?', to which he answered, 'Yes.' The corporation argues that the admission of this evidence was prejudicial. Although evidence of insurance is generally improper in a negligence action, such evidence may be introduced with properiety for the purpose of showing ownership and control when they are in issue. Perkins v. Rice, 187 Mass. 28, 29--30, 72 N.E. 323; Sibley v. Nason, 196 Mass. 125, 128--129, 81 N.E. 887; Baum v. Ahlborn, 210 Mass. 336, 337, 96 N.E. 671; Marsh v. Beraldi, 260 Mass. 225, 232--233, 157 N.E. 347; Lekarczyk v. Dupre, 265 Mass. 33, 38--40, 163 N.E. 642. However, in each of the cases above cited there was a genuine dispute on the issue of ownership and control, and introduction of evidence of insurance served to enlighten the triers of fact. In those cases the evidence related directly to the particular object about which the question of ownership or control centered. This case is different. The pleadings, to be sure, raised the question whether the corporation controlled certain portions of the building but the issue was not disputed at trial. Ownership of the building was freely admitted on its behalf. Thus proof of insurance was unnecessary to show that ownership. Minkkinen v. Nyman, 325 Mass. 92, 95, 89 N.E.2d 209. See Cowan v. Eastern Racing Ass'n Inc., 330 Mass. 135, 147, 111 N.E.2d 752; Gladney v. Holland Furnace Co., 336 Mass. 366, 368, 145 N.E.2d 694. The corporation correctly argues that the question put to Samuel Glick was simply whether it did insure the building without any specification as to the kind and nature of the insurance carried, that no inquiry was made by the judge as to the purpose of the question, and that 'no limitation was put upon its applicability.' The question and answer could have produced a variety of assumptions in the minds of the jury, and we cannot say that this was not seriously prejudicial to the corporation.

2. The judge directed verdicts in favor of the individual defendants, and the plaintiff excepted. They were officers and, as such, in charge of repairs. Since 1942, however, Samuel Glick was not involved in supervising the maintenance of the building where the fire took place although he did approve expenditures for capital improvements. The fire was caused by a combination of circumstances involving overloads of the electrical system. The occasional electrical repair work on the building was performed by an electrical company, the treasurer of which was told from time to time by the Glicks to look into complaints involving the electrical system. All the details of the repair work were left to the electrical contractor by the Glicks, who told him that if he 'saw anything that had to be done, do it, no questions asked.' It is not reasonable to expect laymen to be capable of perceiving defects in an electrical wiring system merely because they are in a building once a month to collect rents and, incidentally, make inspections. There is no indication that the individual defendants had actual knowledge of inadequate wiring. Occasional complaints from tenants and bills from the electrical company for replacement of fuses, as in this case, would not lead to such a conclusion.

The present case is quite close to Tibbetts v. Wentworth, 248 Mass. 468, 143 N.E. 349. In that case the plaintiff was injured when the cable of an elevator was negligently left unrepaired. The elevator in the building was controlled by the Unit Manufacturing Co., of which Frank F. Wentworth was chief officer. Wentworth designated a workman to maintain the elevator. In actions against the Unit Manufacturing Co., Frank Wentworth and Annie C. Wentworth, a verdict was returned in favor of the plaintiff against the company but the judge directed verdicts for the defendants Wentworth. We upheld that action. Since the Tibbetts case is close on its facts to the present case, we quote from that opinion (pp. 472, 473, 143 N.E. p. 350): 'There was no evidence to show that any act by Frank F. Wentworth in person in any way contributted to the injury. He had no connection with the premises except as agent for some other person. . . . He was an officer of the Unit Manufacturing Company, the occupant, and as such took care of repairs. He gave orders for the care of the elevator. There is no evidence to show anything more. No knowledge of failure to perform what he ordered is brought to him. No negligence of . . . any kind by him is shown. . . . 'On the evidence the case against him stands merely as that of an agent, or an officer of a corporation who is not liable for nonfeasance to any one but his principal or employer. . . . (T)he negligence in failing to inspect or to repair the elevator which led to the accident was of another person to whom the Unit Manufacturing Company, and not Frank F. Wentworth, stood in the position of superior. The servant of the Unit Manufacturing Company, and not the servant of Wentworth, was the negligent person.' See Patterson v. Barnes, 317 Mass. 721, 723--724, 60 N.E.2d 82; Evans v. Rohrbach, 35 N.J.Super. 260, 264--267, 113 A.2d 838.

Here the individual defendants were not negligent in the maintenance of the electrical system. They simply gave general orders for the care of the wiring to an independent contractor and were not apprised that the contractor might negligently have maintained the system. It is the corporation and not the individual defendants which had the primary responsibility and liability. No error appears in the direction of the verdicts by the judge for the individual defendants.

3. We turn to a discussion of the defendant...