| Mass. | May 17, 1906
These were two actions of tort, the first to recover damages for personal injuries received as hereinafter described, and the second by the husband of the first named plaintiff to recover for loss of service, and for expenses incurred for medical attendance and nursing, of his wife. Since the right of the husband to recover must stand or fall with that of his wife, the discussion will be confined to her case, and the term “ plaintiff ” will be understood as applying simply to her.
The plaintiff, while at work as a servant in the employ of one Hammond, in a kitchen which was a part of premises let to him by the defendant, was injured by the fall of plastering from the ceiling. The building of which the premises hired by Hammond were a part was owned entirely by the defendant. This part was upon the ground floor, and consisted of a dining room fronting on the street, with a kitchen in the rear. A portion of the kitchen adjacent to the easterly wall of the building was covered with a composition roof which measured eight feet by twelve feet. Upon this roof a number of boards were laid and a clothes shed constructed, which was used by the other tenants of the building for drying clothes. This shed was uncovered, and above it was a light and air space extending to the roof of the main building. The shed and roof covering the kitchen were not a part of the premises let to Hammond and were never used by him; and the only means of access to the roof was through a part of the building not let to him.
The lease under which Hapamond held provided that he would “ keep all and singular the said premises, in such repair, order and condition as the same are in at the commencement of said term, or may be put in during the continuance thereof.” The
The plaintiff, being in the employ of Hammond, can have no greater rights under the circumstances disclosed in this case than he had. Roche v. Sawyer, 176 Mass. 71" court="Mass." date_filed="1900-05-16" href="https://app.midpage.ai/document/roche-v-sawyer-6427076?utm_source=webapp" opinion_id="6427076">176 Mass. 71. Jordan v. Sullivan, 181 Mass. 348" court="Mass." date_filed="1902-05-21" href="https://app.midpage.ai/document/jordan-v-sullivan-6427851?utm_source=webapp" opinion_id="6427851">181 Mass. 348. Phelan v. Fitzpatrick, 188 Mass. 237" court="Mass." date_filed="1905-05-19" href="https://app.midpage.ai/document/phelan-v-fitzpatrick-6428937?utm_source=webapp" opinion_id="6428937">188 Mass. 237. By the terms of the lease Hammond was under an obligation to keep in repair the ceiling, since it was a part of the kitchen; and the defendant owed to him no duty to repair the roof. The work done by the defendant is not shown to have been done in pursuance of any agreement to repair, and is not to be regarded as an admission of his liability or obligation to repair. Phelan v. Fitzpatrick, ubi supra. It follows that the ruling of the trial court was right.
Exceptions overruled.