McLean v. Fiske Wharf & Warehouse Co.

• Decision Date: 14 March 1893
• Citation: 158 Mass. 472,33 N.E. 499
• Parties: MCLEAN v. FISKE WHARF & WAREHOUSE CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

158 Mass. 472

33 N.E. 499

MCLEAN v. FISKE WHARF & WAREHOUSE CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 14, 1893

The following evidence was offered, and excluded by the court, subject to the plaintiff's exception in each case: "First. Mr. Murphy having testified that he had never refused to paper the tenement of Mrs. McLean until he first saw Mr. Nichols about it, and that, when requested to repair the steps, shed, and blinds attached to No. 453, that he had never stated that he must first see John C. (meaning John C. Nichols, treasurer of defendant company) about these matters, the plaintiff offered to prove by Mr. McLean that he had stated that he could not paper the tenement, or repair the steps, shed, or blinds, until he had seen Mr. Nichols. This latter evidence was excluded, as if it had been offered seriatim. Second. Mr. Nichols was asked by plaintiff, in reference to Mr. Murphy, and the following question was put 'Question. You know Mr. Murphy to be a pretty irresponsible man, don't you?' (Objected to, and excluded.)"

COUNSEL

John P. Leahy, for plaintiff.

Horace G. Allen and Wm. R. Howland, for defendant.

OPINION

KNOWLTON J.

The plaintiff was not harmed by the ruling requiring her to elect, at the close of her evidence, on which count she would rely. Where the declaration contains two counts, stating different grounds for recovery for the same cause of action it is ordinarily in the discretion of the presiding justice to determine whether the plaintiff shall elect between them or be permitted to go to the jury on both. In the present case the second count alleged that the defendant, prior to the accident, had undertaken to make repairs on the building, and had made them negligently. There was no evidence that the defendant, or anybody else, had ever repaired the building, and there was nothing to submit to the jury under this count.

The next question is whether there was evidence to warrant a verdict for the plaintiff under the first count. The defendant was the owner of the premises where the accident happened, and there was evidence from several witnesses which was uncontradicted, that five houses, including these premises, had been let to one Murphy in 1885, and had been in his control, as tenant of the defendant, all the time from that year to the day of the accident, which occurred in 1890, and that by the contract of letting the defendant was not required to make any repairs. It was also undisputed that the plaintiff hired the premises from Murphy, and paid rent to him, taking receipts signed in his name, and that she had all her dealings in regard to the tenement with him, and that he ordered her out a short time before the trial. The plaintiff relies on evidence that the carpenter who...