London Tobacco Co. v. Freeman

• Decision Date: 28 October 1932
• Citation: 280 Mass. 368,182 N.E. 862
• Parties: LONDON TOBACCO CO., Inc., v. FREEMAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

280 Mass. 368

182 N.E. 862

LONDON TOBACCO CO., Inc.,

v.FREEMAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Oct. 28, 1932.

Exceptions from Superior Court, Suffolk County; Donnelly, Judge.

Action by the London Tobacco Company, Incorporated, against Joseph Freeman and others.Verdict for defendant, and plaintiff brings exceptions.

Affirmed.

M. M. Horblit and B. Goldman, both of Boston, for plaintiff.

FIELD, J.

This is an action by a tenant against its landlord to recover compensation for damage to tobacco and machinery in the leased premises, caused by rain leaking through the roof.The first count of the declaration alleges that the defendant negligently repaired the roof; the second count alleges that the roof remained in the control of the defendant and that he, in violation of his duty to keep it in repair, negligently permitted it to fall into disrepair.The verdict for the defendant was directed upon his motion and the plaintiff excepted.Counsel agreed that if the court‘should have denied the motion, damages are to be assessed, but if it was right in allowing the motion * * * the verdict was to stand.’

The action is described in the bill of exceptions as an ‘action of contract or tort,’ but the declaration contains no count in contract.Consequently, it is unnecessary, on exception to a directed verdict, to consider whether the evidence would have warranted a verdict for the plaintiff on such a count.Brasslavsky v. Boston Elevated Railway Co., 250 Mass. 403, 404, 145 N. E. 529;Pisco-Pausata v. Oliver Ditson Co., 276 Mass. 377, 381, 177 N. E. 611.Nor is it contended that the evidence would have warranted a verdict on the first count.There was no evidence of negligent repairing.

The evidence did not warrant a verdict for the plaintiff on the second count of the declaration.

Findings could have been made that the plaintiff occupied a store on the first floor of a building owned by the defendant, that two apartments above the store were let to other tenants, that the rear of the store extended beyond the apartments, and that tobacco and machinery belonging to the plaintiff in the rear of the store were damaged by water which leaked through the roof after a heavy rainfall.The plaintiff contends that it was a tenant at will of the defendant, and that the roof through which the water leaked was in control of the defendant.If this was the situation-and it is not necessary to decide whether the evidence warranted a finding that it was, since the plaintiff's case fails on another ground-the defendant owed the plaintiff the duty to exercise reasonable care to keep the roof in the condition in which it was or appeared to be at the time of the letting.Hilden v. Naylor, 223 Mass. 290, 111 N. E. 848;Sullivan v. Northridge, 246 Mass. 382, 141 N. E. 114;Kendall v. Tashjian, 258 Mass. 377, 155 N. E. 4;Devine v. Lyman, 270 Mass. 246, 169 N. E. 908;Grady v. Gardiner, 272 Mass. 491, 494, 172 N. E. 602.

If the plaintiff, as it contends, was a tenant at will, the letting did not take place earlier...