McCall v. New York Life Ins. Co.

• Decision Date: 26 February 1909
• Parties: McCALL et al. v. NEW YORK LIFE INS. CO. ADVERTISER NEWSPAPER CO. v. SAME (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

201 Mass. 223

87 N.E. 582

McCALL et al. v. NEW YORK LIFE INS. CO.

ADVERTISER NEWSPAPER CO. v. SAME (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1909

COUNSEL

C. F Eldridge, for plaintiff.

W. A Morse and F. J. Geogan, for defendants.

OPINION

HAMMOND J.

To these three actions for rent alleged to be due under a written lease to the defendant, the defense relied upon at the trial was eviction; and the main question is whether upon the evidence the defendant was entitled to go to the jury on that defense.

At the trial many of the material facts were not in dispute. It appeared that the lease was dated July 1, 1902, and was for the term of five years from the 1st day of September, 1902. The demised premises consisted of the entire office space on the fourth floor of the Union Trust Company Building 'with the privileges and appurtenances to the same belonging.' The lessor covenanted inter alia that it would 'at its own expense cause the elevators in said building to be kept in repair, and to be operated daily during reasonable business hours except on Sundays and legal holidays, and when the same may be stopped by inevitable accident or for necessary repairs.' The defendant went into actual occupancy of the premises under the lease in October 1902, and continued in occupation until June 30, 1903, on which day it vacated the premises, having first given notice of its intention to do so for the reason that the lessee was unable to enjoy and make use of the premises 'on account of the irregular, defective, insufficient and dangerous working and ways of the elevator on said premises provided for tenants of the building.' The rent was paid up to and including June 30, 1903, and these suits were for rent after that date. The lease provided that the leased premises should be used 'only as and for the transaction of life insurance business, and for no other purpose whatsoever, without the written consent of the lessor, evidenced on this lease.'

There was evidence that there were about 25 agents of the defendant company having desk room on the premises, who frequently had occasion to use the elevator, as did also customers who came to see the company on business, and that there was an average of about 150 persons who had occasion to make use of the elevator in going to and from the defendant company's premises in the regular course of business; that the customers 'represented people of both sexes, a great many of whom were people well advanced in years, some of whom walked upstairs with great difficulty, and some of whom were unable to walk upstairs or walk down, to and from' the premises.

There was also evidence that from the first the working of the elevator was irregular and unsatisfactory, and that it continued to be so, up to the time the defendant vacated the premises. One witness testified that the elevator did not run during business hours with any regularity, and...