322 Mass. 299 | Mass. | 1948
This is an action of tort by Letitia Ryan, a tenant under a written lease, to recover for personal injuries received on the leased premises by the fall of a leg qf a sink which the defendant lessor is alleged to have repaired negligently. There is a count for medical expenses
There seems to have been no dispute as to the facts. On July 27, 1945, an iron leg of a sink became detached and fell to the floor. The female plaintiff notified the defendant’s office, and on the same day “someone” came and in “five or ten minutes” put the leg back in position. On August 3, 1945, the leg, which had not been disturbed by the female plaintiff, without apparent cause fell upon her foot.
The defendant is “a public body politic and corporate.” G. L. (Ter. Ed.) c. 121, § 26K, as appearing in St. 1946, c. 574, § 1. See formerly § 26L, as appearing in St. 1938, c. 484, § 1. Allydonn Realty Corp. v. Holyoke Housing Authority, 304 Mass. 288, 290. It is “liable in contract or in tort in the same manner as a., private corporation.” G. L. (Ter. Ed.) c. 121, § 26V, as appearing in St. 1946, c. 574, § 1. See formerly § 26FF, as inserted by St. 1938, c. 484, § 1. Johnson-Foster Co. v. D’Amore Construction Co. 314 Mass. 416, 419.
It is well settled that a landlord who makes repairs not in pursuance of any contract is liable only for gross negligence in the performance of that gratuitous undertaking. Bergeron v. Forest, 233 Mass. 392, 398. Diamond v. Simcovitz, 310 Mass. 150, 152. Greenway Wood Heel Co. Inc. v. John Shea Co. 313 Mass. 177, 181. Blood v. Dewey, 315 Mass. 500, 503. McDermott v. Merchants Cooperative Bank, 320 Mass. 425, 427. In the present case neither was gross negligence alleged nor was there any evidence tending to prove it.
The lease, dated March 1, 1943, was for the term of one calendar month, and “Unless terminated as herein provided . . . shall be automatically renewed for successive terms of one month each at the same rental per month, payable in advance on the first day of each calendar month.” Either party could terminate the lease without cause “on any day during any term” by giving fourteen days’ written
The quoted provisions did not amount by implication to an agreement to repair on the part of the landlord. The reservation of the right to enter to make.such repairs “as may be deemed necessary” imported no reservation of control. Stone v. Sullivan, 300 Mass. 450, 454, and cases cited. See 265 Tremont Street, Inc. v. Hamilburg, 321 Mass. 353, 359. A covenant that the tenant shall surrender the premises at the end of the lease “in good order and repair, reasonable wear and tear excepted,” means that he shall turn over the premises in rentable condition. Weeks v. Wilhelm-Dexter Co. 220 Mass. 589. Such a covenant does not impose upon a tenant the duty to keep the premises in rentable repair during the lease, and is fulfilled by vacating the premises in that condition. Atkins v. Chilson, 9 Met. 52, 63. Hill v. Hayes, 199 Mass. 411, 416. Massachusetts Home Missionary Society v. Sirianni, 252 Mass. 352. That covenant in the case at bar was not inconsistent with the provision that the tenant should not make repairs, but it is
There was nothing in the other evidence which warranted a finding of an agreement to repair by the landlord. We need refer to but one matter. One of the interrogatories propounded by the plaintiffs to the defendant was whether there was any understanding or agreement between the parties as to the care of plumbing fixtures on the premises. The defendant’s answer was, “The defendant upon notice by the tenant makes such repairs as, in its discretion, are necessary or required.” This added little, if anything, to what was disclosed by the lease. “The fact that the landlord makes other repairs is not evidence that he agreed to keep the premises in repair.” Galvin v. Beals, 187 Mass. 250, 253, and cases cited. Martin v. Rich, 288 Mass. 437, 440.
Certain cases cited by the plaintiffs at the oral arguments are distinguishable. The lease was not ambiguous, as in Nash v. Webber, 204 Mass. 419, 424-425, or as was the oral contract in Crowe v. Bixby, 237 Mass. 249, 252-253. There was no evidence of a concealed defect known to the landlord at the time of the letting, as in Cowen v. Sunderland, 145 Mass. 363, 365, and Borden v. Hirsh, 249 Mass. 205, 211. Analysis of the pertinent principles is not furthered by denominating the condition a “trap”. Partridge v. United
Exceptions overruled.