Marion v. Bryson

• Decision Date: 29 December 1950
• Citation: Marion v. Bryson, 326 Mass. 618, 96 N.E.2d 165 (Mass. 1950)
• Parties: MARION et al. v. BRYSON et al.
• Court: Supreme Judicial Court of Massachusetts

Page 165

96 N.E.2d 165

326 Mass. 618

MARION et al. v. BRYSON et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 8, 1950.

Decided Dec. 29, 1950.

J. C. Webb, Boston, for plaintiffs.

A. B. Goodspeed, Boston, for defendants.

Before QUA, C. J., and LUMMUS, RONAN, WILKINS, and COUNIHAN, JJ.

LUMMUS, Justice.

This is an action of tort for personal injuries to the plaintiff Mildred Marion, with a count for consequential damages to her husband, the plaintiff Harry Marion. St. 1939, c. 372, § 1, now G.L. (Ter.Ed.) c. 231, § 6A. There was evidence tending to prove the following. Prior to June 24, 1946, the male plaintiff had been a tenant at will of an apartment in a building owned by the defendants' predecessor in title. The conveyance to the defendants on that date terminated that tenancy at will, and converted the tenancy into a tenancy at sufferance. Souza v. Becker, 302 Mass. 28, 18 N.E.2d 350, 120 A.L.R. 1002; Ferrigno v. O'Connell, 315 Mass. 536, 537, 53 N.E.2d 384; Strycharski v. Spillane, 320 Mass. 382, 384, 69 N.E.2d 589; Jones v. Webb, 320 Mass. 702, 703, 71 N.E.2d 216; Farris v. Hershfield, 325 Mass. 176, 177-178, 89 N.E.2d 636. About June 27, 1946, the male defendant introduced himself to the female plaintiff as the new owner. She complained to him of the condition of the stairs at the rear of the building, which formed a common passageway for the use of all the tenants. She said that nails were sticking up and the boards were split and loose. He took a hammer and pounded the nails in and put in some new nails. She then found the steps in better condition than they were in before, and 'pretty steady.'

The rent for June had been paid, and about July 1 the rent for July was paid to the defendants. It could have been found that a new tenancy at will was created. Souza v. Becker, 302 Mass. 28, 31, 18 N.E.2d 350, 120 A.L.R. 1002; Staples v. Collins, 321 Mass. 449, 451, 73 N.E.2d 729.

In Sneckner v. Feingold, 314 Mass. 613, 614, 51 N.E.2d 118, we said. 'The general rule as to the liability of a landlord to a tenant and, among others, to a member of the tenant's family * * * for defects in a common passageway, is well settled. The landlord owes a duty, not to keep the common passageway in as good a condition as that in which it was or appeared to be at the time of the letting, but rather to use reasonable care to do so.' Fernandes v. Medeiros, 325 Mass. 293, 295, 90 N.E.2d 9; Gill v. Jakstas, 325 Mass. 309, 312, 90 N.E.2d 527; Brown v. A. W. Perry Co., 325 Mass. 479, 480-481, 91 N.E.2d 229; Baldwin v. Williams, 326 Mass. 177, 179, 93 N.E.2d 456.

On July 5, 1946, the female plaintiff fell while descending the stairway in question, because the outside one of three boards constituting the tread of the bottom step, and the riser attached thereto, broke, off under her weight. Inspection of the then exposed stringers disclosed that they were badly rotted, split and broken. In cross-examination the male defendant testified that he 'experienced no difficulty' in driving nails into the stairs when he repaired them, and that after the accident he saw a board missing from the tread with nails sticking out of it straight, not bent at all. There was no evidence that the male defendant found any...