338 Mass. 44 | Mass. | 1958
This action of tort for personal injuries was tried in the Superior Court without a jury. The case was referred to an auditor who found for the plaintiff. His report, not final, was the only evidence. The judge allowed the plaintiff’s motion for judgment on the report and the defendant excepted. There was error.
The report finds relevant facts as follows: On November 15, 1955, the plaintiff, an employee of the Worcester County Electric Company, was, according to his custom and without permission from or objection by anyone in charge, eating his lunch in a fire house of the city of Worcester, which was accessible by truck to the place where the
In one of the concluding paragraphs of his report the auditor states, “I find that, at the time he was injured . . . [the plaintiff] was a licensee of the city of Worcester. I find that the defendant. . . was painting the outside trim of the fire station . . . and . . . did not have possession of the interior of the fire station. I find that the plaintiff was neither a licensee, nor a trespasser, as to the defendant . . . .” Plainly, these conclusions, though stated as findings, included rulings of law.
The plaintiff does not dispute that the defendant had “possession for the purposes of the work” (Mikaelian v. Palaza, 300 Mass. 354, 355) of that part of the building where the work was to be performed nor the principle that such possession carried with it “enough of the privileges and immunities of ownership to place the contractor in the position of the owner with respect to his duty of care toward trespassers or mere licensees . . ..” Ibid. 355-356, and cases cited. The plaintiff also recognizes that this principle, if applicable, would limit the defendant’s liability to wanton, wilful or reckless conduct. Gravelle v. New York, New Haven & Hartford R.R. 282 Mass. 262, 267.
The plaintiff does contend that the principle stated in the Mikaelian case, supra, is inapplicable because of the auditor’s finding that the defendant “did not have possession
The auditor’s finding as to possession is significant only when read with the finding which follows it that “the plaintiff was neither a licensee, nor a trespasser, as to the defendant.” These so called findings, together, embrace the conclusion, and ruling, that the defendant, not having possession of the interior, did not have such possession of the building as to extend the owner’s immunity to the act here complained of. Such ruling is wrong. The defendant had such possession of the building as was reasonably necessary to permit it to paint the exterior trim, and this included control of the windows. The defendant’s possessory rights, exercisable with the immunity of the owner, included opening and moving the windows to prevent sealing them shut in the course of painting adjacent trim and to facilitate painting such trim or the windows as part of the trim. It is immaterial that the plaintiff when injured was in a part of the building which the defendant would not enter. Compare Buckley v. Arthur J. Hickey Family Laundry Co. 261 Mass. 348, 350; Sarna v. American Bosch Magneto Corp. 290 Mass. 340, 345. And see Haskins v. Grybko, 301 Mass. 322. In the Sarna case we said as to the cases there reviewed where immunity from liability for negligence was recognized that “in each the plaintiff’s injury was caused by contact with property owned or controlled by the defendant” (pp. 345-346). The intervention here of the object which the moving window set in motion is not a basis for a distinction.
The plaintiff is not helped by the rule in Rosenblum v. Ginis, 297 Mass. 493, 496, that the auditor’s general finding imports findings of subsidiary facts essential to the con
Exceptions sustained.
Judgment for the defendant on
the auditor’s report.