Tibbetts v. Wenworth

• Decision Date: 09 April 1924
• Citation: 248 Mass. 468,143 N.E. 349
• Parties: TIBBETTS v. WENTWORTH (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

248 Mass. 468

143 N.E. 349

TIBBETTS

v.WENTWORTH (two cases).

Supreme Judicial Court of Massachusetts, Essex.

April 9, 1924.

Exceptions from Superior Court, Essex County; F. T. Hammond, Judge.

Actions in tort by Clarence G. Tibbetts against Frank F. Wentworth and against Anna C. Wentworth, respectively, to recover for personal injuries suffered when plaintiff was caught by the cable of an elevator. Verdicts were directed for defendants, and plaintiff brings exceptions. Exceptions overruled.

T. S. Herlihy, of Newburyport, for plaintiff.

James W. Sullivan and Joseph F. Doyle, both of Lynn, for defendants.

WAIT, J.

The plaintiff, in February, 1922, was caught and injured by the cable of an elevator negligently suffered to be out of repair. The building in which the elevator was located was owned by Annie C. Wentworth and was used in the business of the Unit Manufacturing Company, the plaintiff's employer, a corporation of which Frank F. Wentworth, husband of Annie C. Wentworth, was the president, treasurer,and general manager. The plaintiff brought three suits to recover for his injury; one against the Unit Manufacturing Company, one against Annie C. Wentworth, and one against Frank F. Wentworth.

The three actions were tried together in the superior court, where the trial judge directed verdicts for the defendants Annie C. Wentworth and Frank F. Wentworth. In the case against the Unit Manufacturing Company a verdict was found for the plaintiff. It was agreed that judgments for like amounts might be entered for the plaintiff in the cases against the Wentworths, if the judge erred in directing verdicts for the defendants. The cases are here on a single bill of exceptions for the two cases against the Wentworths, alleging error in three rulings upon evidence made in the course of the trial, and in the allowance of the motions to direct verdicts for the defendants.

There was evidence to show that the plaintiff had been in the employ of the Unit Manufacturing Company for about five years. In 1916, Annie C. Wentworth purchased the building in which the accident occurred. Later she transferred it to the Unit Manufacturing Company, which in December, 1920, reconveyed it to her, and at the time of the accident she held the legal title. Whether this reconveyance was authorized by the Unit Manufacturing Company was in dispute. The Unit Manufacturing Company used the building with her permission on the understanding that it would pay the expenses, taxes, insurance, etc., and would keep up the premises. There was no written lease, and ‘though supposed to pay rent to her’ for use and occupation of the building, in fact, the corporation did not. It rented part of the premises to the Amesbury Specialty Company, which used one floor and the elevator in its business and paid rent to the Unit Manufacturing Company. A written lease from the Unit Manufacturing Company to the Amesbury Specialty Company had been prepared, and it was put in evidence by the plaintiff; but it had never been delivered, apparently, because no copy of a vote of the Unit Manufacturing Company authorizing its execution had been obtained. This lease required the lessor, the Unit Manufacturing Company, ‘to maintain the stairways and the elevator and entrances.’ Annie C. Wentworth did not receive any part of this rent.

Frank F. Wentworth, as president, treasurer, and general manager of the Unit Manufacturing Company, took care of repairs as they might be necessary, and designated one man to attend to them and to do the work of greasing the elevator ways. The foregoing is all the evidence material to the exceptions.

The declaration in the suit against Annie C. Wentworth alleged ownership of the building by her and injury from defects in an elevator in her control, through her negligence or the negligence of her agents.

The judge was right in directing a verdict in her favor. If she was not owner of the building, clearly no liability on her part was shown by the evidence. If she was owner of the building, the uncontroverted evidence demonstrated that she was not in possession or control of any part of it; and equally clearly no liability on her part existed. No act or conduct of hers in any way contributed to the injury. The plaintiff made no claim that the Unit Manufacturing Company or the Amesbury Specialty Company was merely a fraudulent cover under which she, in fact, carried on business or held property. Conahan v. Fisher, 233 Mass. 234, 124 N. E. 13;Coman v. Alles, 198 Mass. 99, 83 N. E. 1097,14 L. R. A. (N. S.) 950;Rice v. Boston University, 191 Mass. 30, 77 N. E. 308.

The declaration in the suit against Frank F. Wentworth was in three counts, alleged...