301 Mass. 156 | Mass. | 1938
These are two actions of tort which were tried to a jury. At the close of the plaintiff’s evidence in each case, the judge allowed a motion of the defendant for a directed verdict in its favor on each count of the declaration, and reported his action for the consideration of this court. Under the terms of the report in each case, if the action was correct judgment is to be entered for the defendant; otherwise a new trial is.to be ordered.
The evidence in its aspect most favorable to the plaintiffs would have warranted the. jury in finding the following facts. On January 30, 1935, the plaintiff Little was the owner of a parcel of land and a building thereon in the city of Lynn, in which building was stored certain personal property of the plaintiff corporation. The defendant was the then owner of a factory building which adjoined that of the plaintiff Little. The defendant’s building was equipped throughout with an automatic sprinkler system. During the night of January 28, 1935, the fire department of the city of Lynn, having been informed that there was a leak in the sprinkler system in the defendant’s building, in accordance with its usual practice shut off the water supply to that building. About 8 or 8:30 a.m. on January 29, the chief of the fire department notified the defendant’s agent, Farquhar, who was in charge of the building, that the water had been shut off and that the sprinkler system needed to be repaired “before the water could be again turned into the pipes.” Between eleven and twelve o’clock in the forenoon of the same day, Farquhar instructed It. T. Pender, Inc., a corporation carrying on a plumbing and steam-fitting business, to make the necessary repairs. At 1 p.m. an experienced steam fitter and helper employed by this corporation proceeded to make repairs. They suspended their labors at 4:30 p.m., the regular hour for ceasing work under the rules of their employer, without having completed the necessary repairs. The work could have been completed
About 4 a.m. of the next day, January 30, fire was discovered in the defendant’s building, and shortly after the arrival of the fire department there was an explosion which wrecked the building. The fire spread to the building of the plaintiff Little and damaged it substantially, as well as its contents belonging to the plaintiff corporation. There was evidence from which it could have been found that, had the defendant’s sprinkler system been in working order, the fire would have been confined to its premises. At the time of the fire, parts of the defendant’s building were occupied as tenants by two corporations which carried on the business of manufacturing and covering wooden shoe heels. In the course of their business they used and stored various materials or fluids of an inflammable nature, such as celluloid, naphtha and benzine. One of these tenants did not have a permit from the city council for the storage of in-flammables, but its premises were regularly inspected by the fire department. The fire department assumed the existence of such a permit or license, and would not have permitted the use of the inflammables unless the building was equipped with an adequate sprinkler system. The defendant’s agent, Farquhar, was familiar with the management of real estate and with the operation and efficacy of sprinkler systems. He was aware at the time of the fire that there was a commission in the city of Lynn which supplied watchmen for buildings in times of emergency or otherwise, and of the availability of watchmen. The defendant kept no watchman regularly, and, on the night preceding the fire, its elevator operator, who also acted as a “handy man,” went home at 5 p.m. and at 10 p.m. returned and attended to the fire under the boiler. This was a regular procedure. Farquhar made no inquiries as to the progress of the repair work being done on the sprinkler system, and at the close of the business day preceding the fire went home. Up to the time of the fire no information was sought by or furnished to him as to whether the work
As there is no evidence to warrant a finding as to the cause of the fire, the defendant is not liable unless the losses sustained by the plaintiffs were the result of some negligence on its part in failing to confine the fire to its premises, or in respect to a contributing condition of its premises, or in failing to provide adequate means for extinguishing the fire. See Wallace v. New York, New Haven & Hartford Railroad, 208 Mass. 16, 18; Denver v. Porter, 126 Fed. 288, 290; Sauczcuk v. Frankoski, 100 Conn. 700; Spence v. Price, 48 Idaho, 121, 128; State v. Phillips, 176 Minn. 472, 478-479; Walters v. Mason County Logging Co. 139 Wash. 265, 271; Orander v. Stafford, 98 W.
The plaintiffs, however, have argued that it is evident that the defendant knew that various inflammable materials were stored in its building, and that one of its tenants did not have a permit or license to store such materials. The evidence reported does not disclose such knowledge on the part of the defendant. The premises where the inflammables were stored were in the possession and control of the tenant. If a dangerous condition was thus created, it was the result of the tenant’s act, not shown to have been known to the defendant. In such case, in the absence of evidence to show that the defendant reserved the right to ascertain that they were properly used, it cannot be held that it was guilty of negligence with relation to the condition of the premises rented to the tenant. See Maloney v. Hayes, 206 Mass. 1, 3. Even should it be deemed that the storage of the inflammables was a nuisance because of the failure of the tenant to procure a permit or license therefor, the nuisance would be the result
The plaintiffs have argued that the defendant was negligent in failing to keep its sprinkler system in good order. The evidence reported, however, does not warrant a finding that the defendant knew of the storage of the inflammable materials on its premises and that reasonable care required the installation and maintenance of an automatic sprinkler system therein. Not having been shown to have knowledge of any particular danger of fire, the defendant was not obliged to take precautions to guard against it. See Jones v. Granite Mills, 126 Mass. 84, 88; Bellows v. Worcester Storage Co. 297 Mass. 188, 194. Although G. L. (Ter. Ed.) c. 148, § 26, provides that buildings in which benzine, naphtha or other specified substances are stored shall, upon the order of the State fire marshal, be equipped with automatic sprinklers, there is no evidence that any such order had been given to the defendant and its tenants (G. L. [[Ter. Ed.] c. 148, § 29). Hence it is not shown that there was a statutory duty on the defendant to maintain a sprinkler system.
Judgment for the defendant.
