Pittsley v. Acushnet Saw Mills Co.

• Decision Date: 31 January 1938
• Citation: 299 Mass. 252,12 N.E.2d 823
• Parties: MARJORIE E. PITTSLEY, administratrix, v. ACUSHNET SAW MILLS COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

299 Mass. 252

12 N.E.2d 823

MARJORIE E. PITTSLEY, administratrix, v. ACUSHNET SAW MILLS COMPANY.

Supreme Judicial Court of Massachusetts, Bristol.

January 31, 1938

November 30, 1937.

Present: RUGG, C.

J., LUMMUS, QUA DOLAN, & COX, JJ.

Landlord and Tenant, Landlord's liability to tenant or his family or his invitee.

The owner of an ice run was not liable for injury to an employee of a lessee of the run resulting from a hidden defect existing at the time of the making of the lease but unknown to the lessor and lessee.

TORT. Writ in the Superior Court dated March 30, 1936. A verdict for the defendant was ordered by Walsh, J. The plaintiff alleged exceptions.

The case was submitted on briefs. G. H. Young, for the plaintiff.

T. F. O'Brien for the defendant.

DOLAN, J. This is an action of tort to recover damages for the death and conscious suffering of Myron Pittsley, resulting from an accident on March 1, 1936. The case was tried to a jury and at the close of the evidence, on motion of the defendant, the judge directed a verdict for the defendant.

On the day of the accident the intestate was standing on an ice run or staging attached to an ice house owned by the defendant. The ice run collapsed and the intestate suffered injuries from which he died on the following day. Under a written agreement dated December 2, 1935, the defendant granted to the North End Artificial Ice Company the right to use, improve and benefit from certain ice properties "until December 1, 1936 to harvest, store, and merchandise ice." The agreement provided that the grantee "shall maintain the property in good condition at its own expense."

The ice house where the accident occurred was one of seven which were included within the agreement. The defendant had owned them since their construction about ten years prior to the accident. They had been built by the intestate and from the time of their construction he had always been about the premises when ice was being harvested either in the role of proprietor or manager. During 1933 1934, and 1935 the premises had been occupied by Elizabeth Allen, who was doing business under the name of the "North End Artificial Ice Company." During those years and up to the time of the accident the intestate was in her employ as superintendent. He was the person who decided what repairs were to be made to the ice houses, ice runs or stagings and "in what manner and to what extent. . . . Everything was left to . . . [him] to make the repairs," and during 1933, 1934 and 1935 repairs had been made on the property under his direction. The defendant had never directly undertaken any repairs of the property after its acquisition, and the repairs made in the years just referred to were made under the instructions of the intestate's employer to order such repairs as were necessary. The jury could have found that "the section of the ice run on which the plaintiff's intestate . . . [was] standing collapsed because of the pulling through the end of the supporting horizontal timber of the eyebolt which secured it to the section"; that "this occurred because of the rotted condition of the wood"; and that "this condition constituted a defect which was in existence on or before December 2,...