Ryan v. Boston Hous. Auth.

• Decision Date: 28 January 1948
• Citation: 322 Mass. 299,77 N.E.2d 399
• Parties: RYAN et al. v. BOSTON HOUSING AUTHORITY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

322 Mass. 299

77 N.E.2d 399

RYAN et al.

v.BOSTON HOUSING AUTHORITY.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 28, 1948.

Exceptions from Superior Court, Suffolk County; O'Connell, Judge.

Action of court by Andrew J. Ryan and Letitia Ryan against the Boston Housing Authority to recover for injuries received by Letitia Ryan by the fall of a leg of a sink which the defendant, as lessor, was alleged to have repaired negligently, and for medical expenses incurred by Andrew J. Ryan, as husband of Letitia Ryan. After verdicts for plaintiffs, the judge entered verdicts for defendant under leave reserved, and the plaintiffs bring exceptions.

Exceptions overruled.

Before QUA, C. J., and LUMMUS, DOLAN, WILKINS, and SPALDING, JJ.

N. H. Kolodny, of Boston, for plaintiffs.

P. S. Ratzkoff, and R. B. Coulter, both of Boston, for defendant.

WILKINS, Justice.

This is an action of tort by Letitia Ryan, a tenant under a written lease, to recover for personal injuries received on the leased premises by the fall of a leg of a sink which the defendant lessor is alleged to have repaired negligently. There is a count for medical expenses by her husband. G.L. (Ter.Ed.) c. 231, § 6A, as inserted by St. 1939, c. 372, § 1. After verdicts for the plaintiffs the judge entered verdicts for the defendant under leave reserved. The only question is whether the evidence warranted verdicts for the plaintiffs.

There seems to have been no dispute as to the facts. On July 27, 1945, an iron leg of a sink became detached and fell to the floor. The female plaintiff notified the defendant's office, and on the same day ‘someone’ came and in ‘five or ten minutes' put the leg back in position. On August 3, 1945, the leg, which had not been disturbed by the female plaintiff, without apparent cause fell upon her foot.

The defendant is ‘a public body politic and corporate.’ G.L. (Ter.Ed.) c. 121, § 26K, as appearing in St.1946, c. 574, § 1. See formerly § 26L, as appearing in St.1938, c. 484, § 1; Allydonn Realty Corporation v. Holyoke Housing Authority, 304 Mass. 288, 290, 23 N.E.2d 665. It is ‘liable in contract or in tort in the same manner as a private corporation.’ G.L. (Ter.Ed.) c. 121, § 26V, as appearing in St.1946, c. 574, § 1. See formerly § 26FF, as inserted by St.1938, c. 484, § 1; Johnson-Foster Co. v. D'Amore Const. Co., 314 Mass. 416, 419, 50 N.E.2d 89, 148 A.L.R. 353.

It is well settled that a landlord who makes repairs not in pursuance of any contract is liable only for gross negligence in the performance of that gratuitous undertaking. Bergeron v. Forest, 233 Mass. 392, 398, 124 N.E. 74;Diamond v. Simcovitz, 310 Mass. 150, 152, 37 N.E.2d 258;Greenway Wood Heel Co. Inc. v. John Shea Co., 313 Mass. 177, 181, 46 N.E.2d 746;Blood v. Dewey 315 Mass. 500, 503, 53 N.E.2d 227;McDermott v. Merchants Co-op. Bank, 320 Mass. 425, 427, 69 N.E.2d 675. In the present case neither was gross negligence alleged nor was there any evidence tending to prove it.

The lease, dated March 1, 1943, was for the term of one calendar month, and ‘Unless terminated as herein provided * * * shall be automatically renewed for successive terms of one month each at the same rental per month, payable in advance on the first day of each calendar month.’ Either party could terminate the lease without cause ‘on any day during any term’ by giving fourteen days' written notice. There is no contention that there was any express undertaking to repair by the landlord, but it is argued that the following provisions constituted such an agreement by implication: ‘The tenant * * * agrees * * * to pay as further rental, when billed, for any damage to the premised herein leased or to any equipment therein, except damage from causes beyond the control of the tenant or his family. * * * To quit and surrender the premises herein leased promptly upon the expiration or termination of this lease, in good order and repair, reasonable wear and tear excepted.’ ‘The tenant shall not make any alterations or repairs to the premises or of the equipment therein and shall not install any additional locks or fixtures.’ ‘The tenant shall report to the management office at once any accident or injury to * * * fixtures, or other property of the authority and all breakage, damage, or loss of any kind.’ ‘The authority or its representatives shall have the right to enter the tenant's premises during all reasonable hours to examine the same or to make such repairs, additions, or alterations as may be deemed necessary for the preservation thereof or of the building * * *.’

The quoted provisions did not amount by implication to an agreement to repair on the part of the landlord. The reservation of the right to enter to make such repairs ‘as may be deemed necessary’ imported no reservation of control. Stone v. Sullivan, 300 Mass. 450, 454, 15 N.E.2d 476, 116 A.L.R. 1223, and cases cited. See 265 Tremont Street, Inc., v. Hamilburg, 321 Mass. 353, 359, 73 N.E.2d 828. A covenant that the tenant shall surrender the premises at the end of the lease ‘in good order and repair, reasonable wear and tear excepted,’ means that he shall turn over the premises in rentable condition. Weeks v. Wilhelm-Dexter Co., 220 Mass. 589, 108 N.E. 365. Such a covenant does not impose upon a tenant the duty to keep the premises in rentable repair during the lease, and is fulfilled by vacating the premises in that condition. Atkins v. Chilson, 9 Metc. 52, 63;Hill v. Hayes, 199 Mass. 411, 416, 85 N.E. 434, 18 L.R.A.,N.S., 375; Massachusetts Home Missionary Soc. v. Sirianni, 252 Mass. 352, 147 N.E. 823. That covenant in the...