Nash v. Webber

• Decision Date: 10 January 1910
• Citation: 204 Mass. 419,90 N.E. 872
• Parties: NASH v. WEBBER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

204 Mass. 419

90 N.E. 872

NASH v. WEBBER.

Supreme Judicial Court of Massachusetts, Suffolk.

January 10, 1910

Jan 10, 1910.

COUNSEL

Geo R. Swasey and Wm. P. Thompson, for plaintiff.

John Lowell and James A. Lowell, for defendant.

OPINION

SHELDON J.

The plaintiff has the same and only the same rights to maintain her action against the defendant that her mother would have under similar circumstances. Miles v. Janvrin, 196 Mass. 431, 437, 82 N.E. 708, 13 L. R. A. (N. S.) 378, 124 Am St. Rep. 575; Domenicis v. Fleisher, 195 Mass. 281, 81 N.E. 191, and cases cited; Phelan v. Fitzpatrick, 188 Mass. 237, 74 N.E. 326, 108 Am. St. Rep. 469. And the right of the mother must be determined by the terms of the written lease which she took from the defendant, unless those terms have since been modified by the parties.

By that instrument the defendant leased to the plaintiff's mother, Mrs. Nash, 'the suite of rooms No. 2' in the apartment house mentioned therein, for a stipulated monthly rent. She covenanted, besides other agreements not now material, to keep the premises 'in as good repair as the same are in at the commencement of [the] term or may be put in during the continuance thereof,' to use the leased premises only as a private residence, and to pay for all inside repairs. The lessor, the defendant, convenanted that he would 'at his own expense light and keep neat and clean the common stairs in said building, and will supply the premises hereby demised with hot and cold water, and elevator service, and will heat the premises without extra charge from the 1st day of October to the 1st day of May during the term of this lease, except that these provisions shall not apply as to supplying light, water, elevator, or heat at such times as the engines, machinery or apparatus may be disabled by accident or undergoing repairs or alterations.'

This apartment house fronted on Bickerstaff street and was there three stories in height; it ran back in the rear to an alleyway, owned by the defendant, which ran from Norway street to Haviland street, and on this alley the building had four stories. The tenement leased to and occupied by Mrs. Nash included all of the top floor of the building. Access to this tenement was had by means of two flights of stairs; one called the front stairs, being wholly inside the building and leading from Bickerstaff street to the successive floors. The other flight started from the rear of the building in the alley and went first up to the rear of what was the first floor on Bickerstaff street to a piazza or platform which was on a level with that floor and communicated with it; apparently this platform was used for drying clothes or for other purposes by the tenants; then the stairway went to a similar piazza or platform on the level of the next floor and communicating and intended to be used in connection with that floor; then in the same way to a similar platform connected with Mrs. Nash's tenement. These stairs were on the outside of the building, although connected with it, as has been stated. The plaintiff was injured by falling upon this outside stairway, on the second or third tread from the top, by reason of ice and snow which had fallen on the day before this and had not been removed. Her contention is that the defendant, under his covenant in the lease 'to light and keep neat and clean the common stairs' in the building, and also by reason of the fact that he had, as she claimed, assumed this duty, ought to have removed this ice and snow, and is liable to her for the consequences of his failure to do so. The defendant contends that his duty was limited to the front stairs, which were the only common stairs actually 'in' the building.

It way be doubted whether upon the bare words of this lease as applied to the subject-matter thereof the defendant's contention can be sustained. These outside stairs were a part of the structure of the building; they would be included as a matter of description in the building. It would not be a violent stretch of language to say that they might properly be described as 'in' the building. This construction is made the easier by the fact that a statute of this Commonwealth contemplated that two separate and independent means of egress should be provided for a tenement house like this building. St. 1892, c. 419, § 82; St. 1893, c. 293. It fairly may be presumed that it was the intention of the defendant, in providing this rear or outside flight of stairs to comply at least with the spirit of this requirement, whether it was actually binding upon him or not.

Instances of giving as broad a construction of this word 'in' are not lacking. It was done in Trenor v. Jackson, 46 How. Prac. (N. Y.) 389, 393. In Blake v. Exchange Mutual Ins. Co., 12 Gray, 265, an insurance on goods in a brick building known as a car factory was held to cover goods in another building erected as a wing against the rear wall of the building described in the policy, with an opening through the wall of less than three feet square, upon proof that both the wing and the main building were known as the car factory. In Brook v. Warwick, 12 Jur. 912, it was held that a bequest of furniture and other effects 'in, upon or about' a certain house would include articles of the kind named which had temporarily been sent away, and so were not actually in or about the house when the will took effect. Where a testator devised his house with the appurtenances in High street, and all his buildings in that street, and it appeared that he had only one house in High street, but had also two cottages fronting on a lane which could be entered only from High street, it was held that the devisee took also these cottages. Doe v. Roberts, 5 Barn. & Ald. 407. In Old Ladies' Home v. Hoffman, 117 Iowa, 716, 89 N.W. 1066, it appeared that a testatrix had directed that...