259 Mass. 103 | Mass. | 1927
These are three actions of tort to recover damages resulting from the freezing of water and the bursting of a hot water heater in a building. The trustees named in the second and third suits were the owners of adjoining buildings, numbered 32 and 33 India Street, in Boston. The Grasselli Dyestuff Corporation (hereinafter referred to as the Grasselli Company) was a sublessee of certain parts of the building at 32 India Street including the basement.
, John Campbell and Company (hereinafter referred to as the Campbell Company) before October 1, 1924, was a subtenant of the second and third floors of the buflding at
On October 23, by direction of the owners, the water was shut off and drained from all the pipes except those from the heating system and water supply pipes running to the second floor. On November 29, the Campbell Company wrote to the owners’ agent enclosing a check for the rent for the following month and stating: “Please take notice that we are vacating the premises at 33 India Street on the 31st of December, 1924.” Between December 17 and 20, the Campbell Company moved from the building, leaving no one in it after the latter date. There was no evidence that it notified the owners of its intention to vacate the premises before December 31, or that it had so vacated. They had no knowledge that it had actually moved out on December 20. On the morning of December 26 it was discovered that water was escaping from a break in the jacket of the heater, caused by the freezing of water in the pipes; that such freezing rendered the stop cock connecting the heater with the city water supply defective. The result was, that water ran through the heater and into the basement of 32 India Street, damaging the goods stored there by the Grasselli Company. The actions brought by that company against the owners and
The only parts of the building rented to the Campbell Company were the second and third floors. The heater was no part of the premises so rented. The permission given to run the heater was merely a license to use it which, so far as appears from the evidence, never was exercised by the Campbell Company. No rent was to be paid for such use. The most that can be said is that a mere license to use the heater was given which was revocable at the will of the owners. The Campbell Company had neither the legal nor the constructive possession of the heater which would have enabled it to maintain an action against either the owners or a stranger. Such permission did not establish the relation of landlord and tenant. Hamblett v. Bennett, 6 Allen, 140, 145. White v. Maynard, 111 Mass. 250, 255. Central Mills Co. v. Hart, 124 Mass. 123. Roberts v. Lynn Ice Co. 187 Mass. 402, 406. Sellers v. Frank, 213 Mass. 298, 301. Burke v. Willard, 243 Mass. 547.
The Campbell Company offered evidence to show that it did not use the heater for any purpose from October 1 to December 31, 1924. If this evidence were disbelieved, still, as the judge in substance ruled, there was no evidence to warrant a finding that the heater had been so used. This is true even if waste papers with the name of the Campbell Company upon them, and chips and shavings, were found on the first floor near the heater after the basement was flooded. There was no evidence to show why or by whom they were placed there. The fact that the Campbell Company vacated the premises before December 31 without notifying the owners that it would do so was not evidence of negligence on its part. The effect of the notice given was to terminate the tenancy on December 31. The tenant was not required to remain in possession until that date, but could move out at any time prior thereto without notice to
Upon the question whether there was evidence warranting a finding that the owners were liable for the damages sustained by the Grasselli Company, it appears that after October 1, 1924, with the exception of the second and third floors, the entire building and the heater were in the possession of the owners. There was evidence from which it could have been found that before the pipes burst one of the windows in the rear of the first floor was broken; that cold air from this window entering the ash pit of the heater, which faced the rear, and passing through the door created a draft up the chimney, thereby causing the water to freeze and break the jacket of the heater; that water flowing therefrom into the basement of. the adjoining building damaged the plaintiff’s goods; that the temperature for some days before the freezing of the water and the bursting of the heater had been such that it might reasonably have been anticipated that cold air would come into the basement from the broken window and cause the water to freeze. Upon this evidence it was a question of fact for the jury to determine whether there was negligence on the part of the owners in failing to use proper precautions to prevent the freezing of the water and the damage resulting.
It is settled that a person in control of a building is required to exercise reasonable care to keep it in such condition that others will not be injured in their persons or property. Cunningham v. Cambridge Savings Bank, 138 Mass. 480. Where a part of a building is occupied by a tenant having control of it, he is, as to the public, under the duty of keeping such part in repair; and if a defect exists therein, the tenant and not the owner is liable for damages to third persons arising from the defect. If the control and duty of keeping the premises in repair remain with the owner, he is responsible for such
As we have said, in considering the other cases, the Campbell Company was not a lessee of the heater but as to it was merely a licensee; and although, permitted by the owners to use it, it remained in the owners’ possession and control. R. H. White Co. v. Jerome H. Remick & Co. 198 Mass. 41,46.
The case of the Grasselli Company against the owners was rightly submitted to the jury. In that case the defendants’ exceptions to the charge and to the refusal to give their requests numbered 1, 2, 3, 6, 9, 10 and 11, for the reasons heretofore stated must be overruled.
It follows that in each case the entry must be
Exceptions overruled.
