Manaster v. Gopin

• Decision Date: 03 December 1953
• Citation: 330 Mass. 569,116 N.E.2d 134
• Parties: MANASTER et al. v. COPIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 134

116 N.E.2d 134

330 Mass. 569

MANASTER et al. v. COPIN.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 3, 1953.

Decided Dec. 3, 1953.

Bernard Kaplan, Boston for plaintiff.

Walter F. Henneberry, Boston, for defendant.

Before QUA, C. J., and WILKINS, SPALDING, WILLIAMS and COUNIHAN, JJ.

COUNIHAN, Justice.

This is an action to recover for damage to personal property as a result of water leaking from a broken steam pipe on premises owned by the defendant and leased to the testator of the plaintiffs. The declaration is grounded upon negligence of the defendant in maintaining or repairing steam or water pipes on the demised premises. It is in two counts, one for damage sustained on February 3, 1948, and the other for damage sustained on February 6, 1948.

The action comes here upon an exception of the plaintiffs to the direction of a verdict for the defendant. There was no error.

Facts deduced from the evidence and about which there appears to be no dispute may be summarized as follows: On November 14, 1944, the defendant in writing leased certain premises to Samuel Manaster, the plaintiffs' testator. Included in the lease were the second and fourth floors of 40-46 Waltham Street, Boston. The lease was for a term of two years beginning September 1, 1944, and the lessor among other things agreed to furnish heat and warm comfortably the demised premises during such hours of the day as it is customary to furnish heat in buildings of this class. It contained the following significant provisions: 'The Lessee herein shall have the right to renew this lease for the further term of three years on the same terms and conditions of this indenture. And failure of the Lessee to give notice in writing to the Lessor one hundred days prior to the expiration of the term herein provided of his intention to vacate the premises by him occupied, at the expiration of the term, shall constitute a renewal of this lease as is herein provided.' The lease further provided: 'And the Lessee does hereby both individually and as a firm, covenant with the Lessor that the Lessee during the said term and for such further time as he or any other person or persons claiming under him shall hold the said premises or any part thereof, will pay unto the Lessor the said rent at the times, and in the manner aforesaid (except as hereinafter provided), and will keep all and singular the said premises in such repair, order and condition as the same are in at the commencement of said term or may be put in during the continuance thereof, damage by fire or other unavoidable casualty only excepted; and will save the Lessor harmless from all loss and damage in the leased premises occasioned by the use or escape of water upon the said premises, or by the bursting of the pipes, or by any nuisance made or suffered on the premises.'

These premises were occupied by the testator until his death on October 21, 1946, and thereafter by the plaintiffs until after February 6, 1948, at least, for the manufacture and storage of paper and plastic boxes. On February 3, 1948, at about 3 P.M. it was discovered that a return steam pipe on the fourth floor of 40-46 Waltham Street had burst and water was escaping from this pipe onto the plaintiffs' merchandise and was flowing between floor planks to the floors below causing further damage to the plaintiffs' property. Ice could be seen inside that pipe by looking through a slit or crack in it. On February 6, 1948, another pipe in the same coil in which the first pipe was located burst and caused other damage to the plaintiffs' goods.

No notice in writing of intention to vacate as provided in the lease was ever given by the lessee to the lessor.

In these circumstances we think it clear that if the lease dated November 14, 1944, was in existence and effective at the time the damage was caused, the plaintiffs cannot recover because of the indemnity provision in the lease. R. H. Macy & Co., Inc., v. City of Fall River, 323 Mass. 624, 626, 83 N.E.2d 880, and cases cited. General Laws (Ter.Ed.) c. 186, § 15, ¹ inserted by St. 1945, c. 445, § 1, does not render void the indemnity clause because section 2 ² of St. 1945, c. 445, expressly says that c. 445 applies only to leases and rental agreements entered into after October 1, 1945. R. H. Macy & Co., Inc., v. City of Fall River, supra, 323 Mass. at page 627, 83 N.E.2d at page 882; Levins v. Theopold, 326 Mass. 511, 95 N.E.2d...