319 Mass. 615 | Mass. | 1946
These two actions of tort are brought by minors to recover compensation for personal injuries sustained in the circumstances hereinafter recited. At the close of the evidence the defendant filed a motion in each case for a directed verdict on each count of the declaration, which was allowed subject to the exception of the plaintiff concerned. The plaintiffs having failed to order the prepa
The declaration in "each case was in three counts, the first alleging that the defendant was the owner and in control of certain premises, and that the plaintiff was on the sidewalk near the premises and was injured by reason of the defendant’s negligence in allowing an "oil or gas tank” on the premises to explode. The second count contained similar allegations as to ownership and control of the premises by the defendant, and further alleged that the defendant allowed certain persons to place oil and "gas” tanks on the premises, and that the plaintiff was injured by reason of the defendant’s negligence in allowing an oil or "gas” tank which exploded to remain upon the premises for an unreasonable length of time. The third count is based on allegations of maintenance of a nuisance by the defendant on the premises by reason of which the injuries complained of were sustained. The defendant’s answer in each case contained a general denial and an allegation of contributory negligence on the part of the plaintiff.
The evidence most favorable to the plaintiffs would have warranted the jury in finding the following facts: The premises involved, located at 101 Main Street in Med-ford, were owned by the defendant as trustee, and consisted of a vacant lot of land upon which there were certain "shacks.” The defendant had leased the premises to one Gagliardi on November 26, 1940, for a term of one year. Pertinent provisions of the lease are these: "To hold for the term of one year from the first day of December nineteen hundred and forty yielding and paying therefor the rent of Fifty ($50.) dollars a month in advance commencing Dec. 1, 1940 and on the first of each month thereafter. . . . the Lessor may enter to view and make improvements, and to expel the Lessee, if he shall fail to pay the rent as aforesaid, or make or suffer any strip or waste thereof.”
On June 1, 1941, Gagliardi was two months in arrears of
The jury would have been warranted in finding that on July 3, 1941, the plaintiffs were standing on the sidewalk in front of the premises; that "all of a sudden the violent explosion happened”; that as a result both of the plaintiffs were badly burned and seriously injured; that the explosion was that of a tank on the defendant’s premises which had been used by Gagliardi for the storage of gasoline; that the tank had a storage capacity of five hundred fifty gallons; and that one of four openings in the tank was not closed and a person putting his nose close to that opening could smell gasoline fumes.
The plaintiffs rest their actions upon contentions that the defendant had legal control of. the premises during the
The plaintiffs base then contention that the defendant had actual control of the premises at the time of the accident on assertions that, by virtue of the letting to Smith, the premises prior thereto had been abandoned by Gagliardi and that the defendant had accepted surrender thereof. There was no evidence of a surrender in writing, and the only question as to this subject matter is whether there was a surrender by operation of law, with respect to which the rule of law is “that any acts which are equivalent to an agreement on the part of a tenant to abandon and on the part of the landlord to resume possession of demised premises amount to a surrender of a term by operation of law.” Talbot v. Whipple, 14 Allen, 177, 180. Carlton Chambers Co. v. Trask, 261 Mass. 264, 267-268, and cases cited. Washington & Devonshire Realty Co. Inc. v. Freedman, 263 Mass. 554, 558. There must
In the present case the evidence would not have warranted the jury in finding that there had been any agreement between the defendant and Gagliardi for termination of the lease, or that Gagliardi had in fact surrendered the premises to the defendant. The renting of the premises to Smith on June 16, to take effect as of August 1 “retroactive” to July 1, provided the tenant, Gagliardi, had vacated the premises, would not have warranted the jury in finding that there had been any surrender of the premises, and that at the time of the accident the defendant had accepted a surrender and taken possession of the premises. The defendant was under no obligation to relet the premises upon the failure of Gagliardi to pay the rent fixed by the lease, but he had a right to do so without releasing Gagliardi from his obligations thereunder. Leavitt v. Maykel, 210 Mass. 55. Roberts v. Wish, 265 Mass. 179, 181-182. A finding would not be warranted that the act of letting the premises to Smith as of August 1 “retroactive” to July 1, if Gagliardi had then vacated the premises, worked a surrender and acceptance thereof without entry by the defendant or Smith for the purpose of taking possession. See Wallis v. Hands, [1893] 2 Ch. 75; Broadway Building Co. v. Moore Filter Co. 85 Misc. (N. Y.) 385,388; Tiffany, Landlord & Tenant, § 190d.
“It is elementary that liability for damage caused by the condition of premises commonly depends upon control of the offending instrumentality, either through ownership or otherwise.” Frizzell v. Metropolitan Coal Co. 298 Mass. 189, 191. Lowell v. Spaulding, 4 Cush. 277, 278-279. Shepard v. Worcester County Institution for Savings, 304 Mass. 220, 222. Brazinskos v. A. S. Fawcett, Inc. 318 Mass. 263, 265. In the present case, however, we are of opinion that the jury would not have been warranted in finding that at the time of the accident the defendant was in control of the premises in question. It follows that there was no error in allowing the defendant’s motions for directed verdicts.
Since we are of opinion, as already stated, that the jury would not have been warranted in finding that the defendant was in control of the premises in question at the time of the accident, it is unnecessary to consider the exceptions of the plaintiffs taken in the course of the evidence intro
Verdicts to stand.