Orcutt v. Sigouin

• Decision Date: 18 February 1939
• Citation: 22 N.E.2d 18,302 Mass. 373
• Parties: ORCUTT v. SIGOUIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

302 Mass. 373

22 N.E.2d 18

ORCUTT

v.SIGOUIN.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 18, 1939.

Report from District Court of Lowell; Haven G. Hill, Special Judge.

Action by Maude I. Orcutt against Peter Sigouin for injuries sustained as a result of breaking of a portion of a step which provided an entrance to a store located in a building owned by the defendant. The case was tried before a Judge of the District Court, who found for the plaintiff and reported to the Appellate Division his rulings and refusals to rule as requested by defendant. From an order dismissing the report, the defendant appeals.

Affirmed.

F. M. Qua, of Lowell, for plaintiff.

D. H. Fulton, of Boston, for defendant.

DONAHUE, Justice.

The plaintiff seeks to recover damages for personal injuries received by her as the result of the breaking of a portion of a step or platform which provided an entrance to a store, conducted by one Fatticanti, in a building owned by the defendant. The plaintiff had made a purchase in the store and was on her way to the street when the overhanging edge of the step of platform broke and she fell upon the sidewalk.

The case was tried before the judge of a district court. He found for the plaintiff and reported to the Appellate Division his ‘rulings and refusals to rule as requested’ by the defendant, and there the report was ordered dismissed.

The report states that the judge ‘made the following specific findings of fact: 1. The Defendant was the owner of the premises No. 355 Bridge Street, Lowell, which, at the time of the accident, were occupied by one Fatticanti. 2. The Defendant retained the control of said premises and made all repairs, both inside and outside. 3. On a certain day in September, 1927, as the Plaintiff came out of the store on said premises and as she was passing over the outside step or platform, the overhanging edge of the step or platform gave way under her weight, causing her to fall and injure her knee. 4. The overhanging edge of the step or platform was in an unsafe condition at the time and this condition was the cause of the accident. For some time previously the edge of the step had been giving away in places. The Defendant knew of this condition. At the time Fatticanti began to occupy the store, the step or platform was in good condition. 5. The Plaintiff was in the exercise of due care at the time of the accident.’

At the close of the evidence at the trial the defendant filed nine requests for rulings. One of the requests was: ‘Upon all the evidence the only duty that reposed upon the Defendant was to use ordinary care to keep the premises in a reasonably condition.’ This was granted. The defendant then asked, and was given permission, to file at a later time additional requests for rulings and later filed eight more requests for rulings. They all contained the assumption that the relationship of landlord and tenant existed between the defendant owner of the building and the occupant of the store. The judge denied all these eight requests for the stated reason that they were inapplicable to the facts found by him. He did not include in the findings of fact filed by him a finding as to the character of the relationship existing between the defendant and the occupant. The practice of a judge who has denied requests for rulings on the ground that they are inapplicable to the facts which he has found, without making it clear what facts he did find, has frequently been condemned. Commonwealth v. Hull, Mass., 5 N.E.2d 565;Mericantante v. Boston & Maine Railroad, 291 Mass. 261, 263, 197 N.E. 46;Freeman v. Crowell & Thurlow, Inc., Mass., 6 N.E.2d 835. See Mazmanian v. Kuken, 285 Mass. 516, 518, 189 N.E. 815.

In the present instance we think enough appears in the record to indicate that the judge found the relationship of landlord and tenant did not exist between the defendant and the occupant of the store. The denial of the eight requests, all of which contain the common factor of the assumption that the relation of landlord and tenant existed, has a tendency to show that the judge found such relationship did not exist. That is likewise indicated by the judge's granting of the defendant's second request: ‘Upon all the evidence the only duty that reposed upon the Defendant was to use ordinary care to keep the premises in a reasonably safe condition.’ This expresses the duty to one occupying premises under a license, not that of a landlord in the ordinary relation of landlord and tenant. We need not consider whether there was evidence that would warrant the finding that the relationship of landlord and tenant existed. The judge was not bound to find that to be a fact. Simpson v. Eastern Massachusetts Street Railway, 292 Mass. 562, 566, 198 N.E. 920.

The evidence with respect to the character of the relationship existing between the defendant and the occupant was somewhat meagre. It is here fully set out. The defendant, who was called as a witness by the plaintiff, testified as follows: He had owned the building where the store was located for five years at the time of the plaintiff's accident; ‘at one...