Follins v. Dill

229 Mass. 321 | Mass. | 1918

Braley, J.

The trial court had power to vacate the order dismissing the exceptions, and thereupon to amend its docket in conformity with previous orders extending the time for filing exceptions, but which through inadvertence had not been docketed. Dalton-Ingersoll Co. v. Fiske, 175 Mass. 15. Having been filed seasonably and allowed, the defendant’s exceptions under the amended record are properly before us.

The jury could find that by falling or walking into the unguarded well of an elevator, designed for the transportation of freight, the plaintiff’s intestate, while in the exercise of due care, suffered the injuries which after a period of conscious suffering caused his death, and that the accident would not have'occurred if the operating equipment had been in proper repair. Follins v. Dill, 221 Mass. 93.

The plaintiff however cannot recover unless the defendant had undertaken the duty of maintaining the elevator in a reasonably safe condition for the intestate’s use. He went to the building to get waste paper from the third floor leased to one Aronson, who for his own benefit and to be relieved from accumulating rubbish gave the paper, as the jury could find, to any one who would come there and take it away. By the terms of the lease, the lessee “ agrees to use the freight elevator for freight purposes only and will allow no person to ride on the same,” and the intestate was not clothed with any greater rights than the lessee under whose implied invitation he came upon the premises. Baum v. Ahlborn, 210 Mass. 336, 338. It is certain from his own declarations as testified to by his sister, and the evidence of his companion, the only witness of the accident, that when injured he was not intending to use the elevator for freight, as sufficient waste paper to fill the bags he took with him but left in the room had not accumulated, and when he started for the elevator his purpose was to use it only as a means of transit to the street floor. But, its use under such circumstances having been prohibited by the covenant, the intestate at most was a licensee, and the defendant’s request for a directed verdict should have been granted. Billows v. Moors, 162 Mass. 42.

The plaintiff in avoidance of this conclusion relies on evidence from which he maintains that, while this provision had not been expressly annulled, the jury could find that it had been waived by permitting lessees and their invitees to use the elevator for the transportation of passengers when unaccompanied by freight. The covenant being for his benefit, the lessor doubtless could waive it, and waiver may be proved by conduct as well as by the declarations of the party against whom the intentional relinquishment of a known right is asserted. Chace’s Patent Elevator Co. v. Boston Tow-Boat Co. 155 Mass. 211. Stone v. St. Louis Stamping Co. 155 Mass. 267. Brownville Maine Slate Co. v. Hill, 175 Mass. 532.

It is a question of fact if there is any evidence which warrants the finding. McNeil v. American Bridge Co. 196 Mass. 56. Wood v. Blanchard, 212 Mass. 53. But a full examination of the record reveals no dealings between the defendant and the intestate or knowledge by the defendant, even if the jury disbelieved his evidence, that the lessee repeatedly violated this covenant or that other tenants occupying under similar leases regarded it as being more honored in the breach than the observance. While the janitor could be found to have known of what was going on, and did not remonstrate, he is not shown to have been authorized to modify the lease, and his implied acquiescence did not bind the defendant. The further argument, that the lease had been abrogated by custom or usage of which the defendant should have known because of its long continuance, fails to point out how the undisputed terms of a contract can be transformed or eliminated by proof of a custom or usage which comes into existence after the contract has become binding and is being performed. If urged upon the ground, that the custom or usage had been established when the lease was made and that the parties must be presumed to have contracted accordingly, the covenant is reduced to a mere collocation of ineffective words. It purports on its face to be an unambiguous instrument. The alleged countervailing custom when read in, leaves the lease as if the covenant had not been inserted. It has long been settled that a lease cannot be overridden thus and the parties’ rights thereunder destroyed by paroi evidence. Shute v. Bills, 191 Mass. 433, 438. DeFriest v. Bradley, 192 Mass. 346, 353. Barrie v. Quinby, 206 Mass. 259, 264, 265.

The exceptions must be sustained, and, it being sufficiently plain after two full trials on the merits that the plaintiff cannot prevail, judgment for the defendant should be entered in accordance with St. 1909, c. 236.

So ordered.