Little v. Lynn & Marblehead Real Estate Co.

• Decision Date: 14 September 1938
• Citation: 301 Mass. 156,16 N.E.2d 688
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: LITTLE v. LYNN & MARBLEHEAD REAL ESTATE CO. NATIONAL DEVELOPMENT CO. v. SAME.

301 Mass. 156

16 N.E.2d 688

LITTLE

v.LYNN & MARBLEHEAD REAL ESTATE CO.

NATIONAL DEVELOPMENT CO.

v.SAME.

Supreme Judicial Court of Massachusetts, Essex.

Sept. 14, 1938.

Report from Superior Court, Essex County; Franklin T. Hammond, Judge.

Separate actions of tort by Lillian A. Little against the Lynn & Marblehead Real Estate Company and by the National Development Company against the Lynn & Marblehead Real Estate Company for damage caused by fire which originated in premises owned by the defendant. At the close of the plaintiff's evidence in each case the judge allowed a motion of the defendant for directed verdict in its favor on each count of the declaration, and reported the action for the consideration of the Supreme Judicial Court.

Judgment for the defendant.J. W. Sullivan and J. F. Doyle, both of Lynn, for plaintiffs.

P. Shuebruk, of Cambridge, and C. C. Cabot, of Boston, for defendant.

DOLAN, Justice.

These are two actions of tort which were tried to a jury. At the close of the plaintiff's evidence, in each case, the judge allowed a motion of the defendant for a directed verdict in its favor, on each count of the declaration, and reported his action for the consideration of this court. Under the terms of the report, in each case, if the action was correct judgment is to be entered for the defendant, otherwise a new trial is to be ordered.

The evidence in its aspect most favorable to the plaintiffs would have warranted the jury in finding the following facts. On January 30, 1935, the plaintiff Little was the owner of a parcel of land and a building thereon, in the city of Lynn, in which building was stored certain personal property of the plaintiff corporation. The defendant was the then owner of a factory building which adjoined that of the plaintiff Little. The defendant's building was equipped throughout with an automatic sprinkler system. During the night of January 28, 1935, the fire department of the city of Lynn, having been informed that there was a leak in the sprinkler system in the defendant's building, in accordance with its usual practice shut off the water supply to that building. About 8 or 8:30 A. M. on January 29, the chief of the fire department notified the defendant's agent, Farquhar, who was in charge of the building, that the water had been shut off, and that the sprinkler system needed to be repaired ‘before the water could be again turned into the pipes.’ Between 11 and 12 o'clock in the forenoon of the same day, Farquhar instructed R. T. Pender, Inc., a corporation carrying on a plumbing and steam fitting business, to make the necessary repairs. At 1 P. M. an experienced steam fitter and helper employed by this corporation proceeded to make repairs. They suspended their labors at 4:30 P. M., the regular hour for ceasing work under the rules of their employer, without having completed the necessary repairs. The work could have been completed in four to five hours, and had the workmen continued their labors the employer would have paid them for the overtime, which would have been charged to the defendant.

About 4 A. M. of the next day, January 30, fire was discovered in the defendant's building, and shortly after the arrival of the fire department there was an explosion which wrecked the building. The fire spread to the building of the plaintiff Little and damaged it substantially, as well as its contents belonging to the plaintiff corporation. There was evidence from which it could have been found that had the defendant's sprinkler system been in working order the fire would have been confined to its premises. At the time of the fire parts of the defendant's building were occupied as tenants by two corporations, which carried on the business of manufacturing and covering wooden shoe heels. In the course of their business they used and stored various materials or fluids of an inflammable nature, such as celluloid, naphtha and benzine. One of these tenants did not have a permit from the city council for the storage of inflammables, but its premises were regularly inspected by the fire department. The fire department assumed the existence of such a permit or license, and would not have permitted the use of the inflammables unless the building was equipped with an adequate sprinkler system. The defendant's agent, Farquhar, was familiar with the management of real estate and with the operation and efficacy of sprinkler systems. He was aware at the time of the fire that there was a commission in the city of Lynn which supplied watchmen for buildings in times of emergency or otherwise, and of the availability of watchmen. The defendant kept no watchman regularly, and, on the night preceding the fire, its elevator operator, who also acted as a ‘handy man,’ went home at 5 P. M. and at 10 P. M. returned and attended to the fire under the boiler. This was a regular procedure. Farquhar made no inquiries as to the progress of the repair work being done on the sprinkler system, and at the close of the business day preceding the fire went home. Up to the time of the fire no information was sought by or furnished to him as to whether the work had been completed. ‘When the City Firemen first went to the [defendant's] building on the night of January 28th [sic], they found a man walking around in there and some time after the fire the remains of a human being were found in the building and a man employed in one of the wood heel working concerns, who were tenants in the building, was later discovered to be missing and was never found.’ It is stated specifically in the report that there was no evidence from which the cause of the fire could be determined. This statement is not inconsistent with the evidence just referred to with reference to the missing employee of one of the defendant's tenants. Any assumption that the missing man was the one seen in the building, and that he caused the fire, would be mere conjecture. The fact that the fire originated in the defendant's premises is not evidence that it was started by the defendant; nor is it evidence that the fire was caused by any negligence on its part. See Wallace v. New York, New Haven & Hartford Railroad Co., 208 Mass. 16, 19, 20, 94 N.E. 306;Conley v. United Drug Co., 218 Mass. 238, 241, 105 N.E. 975, L.R.A.1915D, 830;World Fire & Marine Ins. Co. v. Alliance Sandblasting Co., 105 Conn. 640, 644, 645, 136 A. 681;Linn v. Barker, 106 Me. 339, 342, 343, 76 A. 700,20 Ann.Cas. 697;Catron v. Nichols, 81 Mo. 80-83,51 Am.Rep. 222;Cosulich v. Standard Oil Co. of New York, 122 N.Y. 118, 123,25 N.E. 259,19 Am.St.Rep. 475. The defendant is liable if its negligence caused the fire, ‘but until its cause is known or fairly found from the evidence [the fire] cannot be said to be due to [the defendant's] negligence.’ Stewart v. De Noon, 220 Pa. 154, 161, 69 A. 587, 589.

As there is no evidence to warrant a finding as to the cause of the fire, the...