Stewart v. Cushing

• Decision Date: 07 January 1910
• Citation: 90 N.E. 545,204 Mass. 154
• Parties: STEWART v. CUSHING.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

204 Mass. 154

90 N.E. 545

STEWART v. CUSHING.

Supreme Judicial Court of Massachusetts, Suffolk.

January 7, 1910

COUNSEL

Lennox H. Lindsay, for plaintiff.

Hugh D. McLellan, for defendant.

OPINION

BRALEY, J.

By the terms of the contract of letting, the landlord neither retained control over the system of drainage, nor agreed to make repairs for the tenant's use, if it became defective during the tenancy. If the defendant had assumed, but neglected to perform, this duty after notice that repairs had become necessary, the plaintiff's remedy would have been an action for breach of contract. Cummings v. Ayer, 188 Mass. 292, 74 N.E. 336; Miles v. Janvrin, 196 Mass. 431, 82 N.E. 708, 13 L. R. A. (N. S.) 378, 124 Am. St. Rep. 575; Id., 200 Mass. 514, 86 N.E. 785. It appeared in evidence that after complaints by the plaintiff that the sink drain had become obstructed, and a noxious odor was noticed in the basement, the defendant caused the pipe to be examined, and the obstruction removed, but, the odor continuing, he again sent plumbers to ascertain the cause. But as these repairs or examinations were voluntarily and gratuitously made, no liability was imposed upon him, unless the work was negligently performed. Gill v. Middleton, 105 Mass. 477, 7 Am. Rep. 548; Kearines v. Cullen, 183 Mass. 298, 67 N.E. 243; Phalen v. Fitzpatrick, 188 Mass. 237, 74 N.E. 326, 108 Am. St. Rep. 469. If subsequently, as the result of an investigation by the board of health, to whom the plaintiff complained, it was ascertained, upon a removal of the floors in the basement, that the odor causing her sickness emanated from a break in the elbow of the drain pipe, the uncontradicted evidence negatived any connection whatever between the defect, and the acts of the defendant's workmen. Galvin v. Beals, 187 Mass. 250, 253, 72 N.E. 969. The evidence offered, that in removing foreign substances a usual method was to break holes in pipes, which were afterwards patched, was inadmissible. To prove what other plumbers might have done, did not furnish proof that the defendant's plumbers had disturbed or broken the elbow. French v. Sabin, 202 Mass. 240, 88 N.E. 845.

The plaintiff having failed to offer any evidence of the defendant's negligence, her exceptions must be overruled.

So ordered.