Nash v. Webber, 204 Mass. 419

Nash v. Webber

204 Mass. 419 | Mass. | 1910

Sheldon, J.

The plaintiff has the same and only the same rights to maintain her action against the defendant that her mother would have under similar circumstances. Miles v. Janvrin, 196 Mass. 431, 437. Domenicis v. Fleisher, 195 Mass. 281, and cases cited. Phelan v. Fitzpatrick, 188 Mass. 237. And the right of the mother must be determined by the terms of the written lease which she took from the defendant, unless those terms have since been modified by the parties.

By that instrument the defendant leased to the plaintiff’s mother, Mrs. Nash, “ the suite of rooms No. 2” in the apartment house mentioned therein, for a stipulated monthly rent. *422She covenanted, besides other agreements not now material, to keep the premises “ in as good repair as the same are in at the commencement of [the] term or may be put in during the continuance thereof,” to use the leased premises only as a private residence, and to pay for all inside repairs. The lessor, the defendant, covenanted that he would “at his own expense light and keep neat and clean the common stairs in said building, and will supply the premises hereby demised with hot and cold water, and elevator service, and will heat the premises without extra charge from the first day of October to the first day of May during the term of this lease, except that these provisions shall not apply as to supplying light, water, elevator, or heat at such times as the engines, machinery or apparatus may be disabled by accident or undergoing repairs or alterations.”

This apartment house fronted on Bickerstaff Street and was there three stories in height; it ran back in the rear to an alley way, owned by the defendant, which ran from Norway Street to Iiaviland Street, and on this alley the building had four stories. The tenement leased to and occupied by Mrs. Nash included all of the top floor of the building. Access to this tenement was had by means of two flights of stairs; one called the front stairs, being wholly inside the building and leading from Bickerstaff Street to the successive floors. The other flight started from the rear of the building in the alley and went first up to the rear of what was the first floor on Bickerstaff Street to a piazza or platform which was on a level with that floor and communicated with it; apparently this platform was used for drying clothes or for other purposes by the tenants; then the stairway went to a similar piazza or platform on the level of the next floor, communicating and intended to be used in connection with that floor; then in the same way to a similar platform connected with Mrs. Nash’s tenement. These stairs were on the outside of the building, although connected with it, as has been stated. The plaintiff was injured by falling upon this outside stairway, on the second or third tread from the top, by reason of ice and snow which had fallen on the day before this and had not been removed. Her contention is that the defendant, under his covenant in the lease “ to light and keep neat and clean the common stairs ” in the building, and also by rea*423son of the fact that he had, as she contended, assumed this duty, ought to have removed this ice and snow, and is liable to her for the consequences of his failure to do so. The defendant contends that his duty was limited to the front stairs, which were the only common stairs actually “ in ” the building.

It may be doubted whether upon the bare words of this lease as applied to the subject matter thereof the defendant’s contention can be sustained. These outside stairs were a part of the structure of the building; they would be included as a matter of description in the building. It would not be a violent stretch of language to say that they might properly be described as “ in ” the building. This construction is made the easier by the fact that a statute of this Commonwealth contemplated that two separate and independent means of egress should be provided for a tenement house like this building. Sts. 1892, c. 419, § 82; 1893, c. 293. It fairly may be presumed that it was the intention of the defendant, in providing this rear or outside flight of stairs, to comply at least with the spirit of this requirement, whether it was actually binding upon him or not.

Instances of giving as broad a construction of this word “ in ” are not lacking. It was done in Trenor v. Jackson, 46 How. Pr. 389, 393. In Blake v. Exchange Ins. Co. 12 Gray, 265, an insurance on goods in a brick building known as a car factory was held to cover goods in another building erected as a win'g against the rear wall of the building described in the policy, with an opening through the wall of less than three feet square, upon proof that both the wing and the main building were known as the car factory. In Brooke v. Warwick, 12 Jur. 912, it was held that a bequest of furniture and other effects <£ in, upon, -or about ” a certain house would include articles of the kind named which had temporarily been sent away, and so were not actually in or about the house when the will took effect. Where a testator devised his house with the appurtenances in High Street, and all his buildings in that street, and it appeared that he had only one house in High Street, but had also two cottages fronting on a lane which could be entered only from High Street, it was held that the devisee took also these cottages. Doe v. Roberts, 5 B. & Ald. 407. In Old Ladies' Home v. Hoffman, 117 Iowa, 716, it appeared that a testa*424tris had directed that at the expiration of five years after her death the proceeds of her estate should be given to an orphan asylum in the city of Muscatine, or if no orphan asylum was then in existence in that city, then to a home for old ladies in that city, with the provision that either the asylum or the home, if not in existence at the time of her death, might be thereafter organized within the stipulated period. At the end of the five years, the only orphan asylum was outside the corporate limits of the city, though within a mile thereof, and there was an old ladies’ home within the city limits. It was held that the orphan asylum was entitled to the bequest.

But however this may be, we are of opinion that evidence of the conduct of the parties and of the practical construction which the defendant had put upon this covenant of the lease was competent, and should have been received. There is at least room for doubt as to the proper scope and intent of this stipulation. As was said by 0. Allen, J., in Winchester v. Glazier, 152 Mass. 316, 323: “ It is a general rule for the construction of all written instruments, including deeds, contracts, statutes, and constitutions, that when the language is open to doubt, and parties whose interests are diverse' have from the outset adopted and acted upon a particular construction, such construction will be of great weight with the court, and will usually be adopted by it.” See also Attorney General v. Algonquin Club, 153 Mass. 447, 452; Humphreys v. Old Colony Railroad, 160 Mass. 323, 327, 328; and Wood v. Edison Electric Illuminating Co. 184 Mass. 523, 528.

Accordingly we are of opinion that the evidence offered by the plaintiff to show that the defendant had taken upon himself the duty of taking care of the outside stairways as well' as of the inside or front stairs, and of clearing ice and snow therefrotn as a part of his duty, should have been admitted. And we are further of opinion that this evidence, in connection with what was admitted, would have warranted a finding that the acts and conduct of the parties had been such as to justify a ruling that the defendant’s covenant in the lease was to be applied, not only to the front stairs, but also to those upon the rear of the building. Also, in our opinion it would have warranted the jury in finding that the defendant had assumed this duty. The con*425duct of the defendant and of his men in this regard could be found to have been more than the mere voluntary making of repairs, with or without the request of a tenant, which would impose no obligation upon a landlord. Phelan v. Fitzpatrick, 188 Mass. 237. Kearines v. Cullen, 183 Mass. 298. The defendant is not to be held upon this ground unless it shall be shown that, as to his relations with the plaintiff’s mother, he actually had taken upon himself the duty of keeping these stairways clear and free from snow, so that she had a right to rely upon his performance of that duty; but if this is shown, and if there has been a negligent breach by the defendant of the duty which he has thus assumed, the plaintiff, if herself in the exercise of due care, has a right to maintain this action for the injury which his negligence has caused to her. Miles v. Janvrin, 196 Mass. 431, and 200 Mass. 514. If this full proof is made, the case will be taken out of the general rule as to ice and snow or other obstructions, coming from natural causes, declared in Woods v. Naumkeag Steam Cotton Co. 134 Mass. 357, and Watkins v. Goodall, 138 Mass. 533. The doctrine by which the landlord of a tenement house is held responsible for the exercise of due care to keep in a safe condition passageways of which he has retained possession and control would be applied to this case in its full extent. Readman v. Conway, 126 Mass. 374. Looney v. McLean, 129 Mass. 33, 35. Wilcox v. Zane, 167 Mass. 302. Coupe v. Platt, 172 Mass. 458.

We cannot doubt that the part of the outside stairway between the top floor of the building and the next floor, like the similar flight of the inside or front .stairway, was a part of the common passageways of the building. The fact that other tenants might not have to use it so much or in the same way as the plaintiff and her mother is not material. It was at least intended for the common use of the landlord and the tenant of this tenement. It was not parcel of the tenement leased, as was probably the platform to which it led. Phelan v. Fitzpatrick, 188 Mass. 237. The whole of each stair constituted one common passageway.

Exceptions sustained.