Perkins v. Rice

• Decision Date: 22 November 1904
• Citation: 187 Mass. 28,72 N.E. 323
• Parties: PERKINS v. RICE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

187 Mass. 28

72 N.E. 323

PERKINS v. RICE et al.

Supreme Judicial Court of Massachusetts, Worcester.

November 22, 1904

COUNSEL

Webster Thayer, Hollis W. Cobb, and Fred A. Walker, for plaintiff.

C. C Milton and G. A. Gaskill, for defendants.

OPINION

BRALEY J.

This is an action of tort, brought to recover damages for personal injuries received by the plaintiff when seeking to use an elevator maintained in an apartment building rented to various tenants, but the ownership of which was admitted by the defendants. The trial in the superior court resulted in favor of the defendants, and the case is before us on exceptions taken by the plaintiff to the exclusion of certain evidence offered by him, and to portions of the instructions under which it was submitted to the jury.

The admission of ownership of the building was accompanied by a denial by the defendants that they were in control of the elevator at the time of the accident, and this must be taken to mean that they required the plaintiff to prove the essential fact that in renting the apartments they still retained control of it. If this was proved, then they might be held liable for its defective condition, if the plaintiff could establish his due care, and negligence on their part in the discharge of any duty they owed to him. See Marwedel v. Cook, 154 Mass. 235, 236, 28 N.E. 140; Wilcox v Zane, 167 Mass. 302, 306, 45 N.E. 923; Coupe v Platt, 172 Mass. 458, 52 N.E. 526, 70 Am. St. Rep. 293.

Although each of the defendants was a witness, neither appears to have been directly asked any questions relating to their retention of possession of the elevator; but, in the cross-examination of one of them, the plaintiff, for the sole purpose of proving such control, formally offered to show that shortly before the accident they had procured a policy of indemnity insurance against loss or damage from accidents arising in operating the elevator, and that such insurance was in force when he was injured. Upon objection being made by their counsel, who stated, in reply to a question asked by the presiding justice, that they still denied any control of the elevator, this offer was excluded. The reasons for such exclusion are not given, and it is to be determined whether the evidence was admissible in support of this issue. The exceptions are silent as to the form in which it was sought to introduce the proposed proof--whether by further cross-examination of the defendant or by the policy itself but as the evidence was, in substance, admissible, either course could have been taken, for the proof offered was in the nature of an admission by the defendants. Smith v. Palmer, 6 Cush. 513, 520, 521. If they had taken such a policy, it was evidence of their interest in some form in the elevator, and, with the accompanying proof, might have been found sufficient to satisfy the jury that, notwithstanding their denial, they still retained the management of it. The probative force of this evidence was for the jury, and it could properly be argued that the defendants would not have deemed it prudent to secure indemnity insurance on an elevator not within...