White v. Beverly Building Ass'n, 221 Mass. 15

White v. Beverly Building Ass'n

221 Mass. 15 | Mass. | 1915

Crosby, J.

The plaintiff was injured by falling down a flight of stairs in a four-story building owned by the defendant and leased by it to various tenants. She was employed by the Blake-Alien Company, one of the defendant’s tenants, who occupied the fourth or top floor of the building.

1. The plaintiff brought an action against her employer, the Blake-Alien Company, to recover for the injuries so received by her, and subsequently brought this action against this defendant to recover for the same injuries.

While both actions were pending in the Superior Court an agreement for the following entry in the case against the Blake-Alien Company was made: “Neither party, no further suit to be brought for the same cause of action.” This agreement was duly signed by the counsel for the plaintiff and for the defendant, and filed in court. Upon the outside of the agreement was indorsed: “Agreement for Judgment.”

Notwithstanding the indorsement the agreement must be construed in accordance with its terms; plainly it was not an agreement for judgment and cannot be so considered. It is what it purports to be, — an agreement for the entry of “Neither party,” with the additional agreement that no further suit is to be brought for the same cause of action.

The defendant earnestly contends that this agreement is a bar to the present action on the ground that the defendant and the Blake-Alien Company were joint tortfeasors; that the Blake-Alien Company was released and that such release operated to discharge this defendant. If we assume, without deciding, that the Blake-Alien Company and the defendant were concurrent or joint tortfeasors, still the entry of the agreement did not operate to discharge the defendant. The entry of “Neither party” in an action does not indicate that the cause has been adjudicated; it means nothing more than that neither party appears to prosecute or defend the action, and is equivalent to a non-suit and default by consent of the parties, after which no judgment can be rendered by the court. "It amounts to an abandonment of the action; it is not a judgment and is no bar to a future action. Marsh v. Hammond, 11 Allen, 483.

*18The defendant relies upon the language of Lord, J., in Blanchard v. Ferdinand, 132 Mass. 389. He there said (p. 391): “The entry of ‘neither party’ upon the record is the appropriate final disposition of the action.” In that case it was held that a judge at a subsequent term had no power to order the entry of “Neither party” stricken off and the case brought forward. While such an entry is a final disposition of the case, it is not a bar to a subsequent action to recover upon the same cause of action. Marsh v. Hammond, supra.

Nor can the agreement be construed as a release. It merely amounts to an agreement not to sue again for the same cause of action. The distinction between an agreement not to sue and a release of one of two or more joint tortfeasors is clearly pointed out in Matheson v. O’Kane, 211 Mass. 91.

The action is not barred upon the ground of accord and satisfaction. The only evidence relative to the disposition of the case against the Blake-Alien Company was the testimony of the plaintiff, and the statement in open court of her counsel that he had agreed to the entry in that case upon the promise of the representative of an insurance company (which had insured the Blake-Allen Company), to pay $250. He further stated that no part of the amount agreed upon in settlement ever had been paid, and there was no evidence of such payment. Under these circumstances it could not be found that there had been an accord and satisfaction. An accord without satisfaction is no defence to an action. Herrmann v. Orcutt, 152 Mass. 405. New York, New Haven, & Hartford Railroad v. Martin, 158 Mass. 313, 315. Anglo-American Land, Mortgage & Agency Co. v. Dyer, 181 Mass. 593, 598. Prest v. Cole, 183 Mass. 283.

At common law even a judgment against one tortfeasor without satisfaction is not a bar as against other joint wrongdoers who are sued separately. Cameron v. Kanrich, 201 Mass. 451.

It follows that the writ, pleadings and agreement in the action of the plaintiff against the Blake-Alien Company were inadmissible and the exception to the exclusion of this evidence cannot be sustained. For the same reason the defendant’s thirteenth request could not have been given.

2. The plaintiff testified, in substance, that as she came down the stairs she took hold of the hand rail on the left side of the *19stairway, and that as she did so the rail came out of the bracket which held it in place and she fell to the foot of the stairs. There was evidence that this was a common stairway, used by the different tenants of the defendant, and was in its control; and that the plaintiff had worked for the Blake-Alien Company in the same place for more than two years before the accident. There was no evidence to show that during this time there was any other way of passing to and from the fourth floor of the building. There was evidence to show that at the time the plaintiff fell the stairway was somewhat dark. Plainly it could not be ruled as matter of law that the plaintiff was not in the exercise of due care; that question was for the jury. Fitzsimmons v. Hale, 220 Mass. 461. Ward v. Blouin, 210 Mass. 140. Faxon v. Butler, 206 Mass. 500. Andrews v. Williamson, 193 Mass. 92. Wilcox v. Zane, 167 Mass. 302. Mahoney v. Dore, 155 Mass. 513.

3. The defendant owed to its tenant, the Blake-Alien Company, as to the common stairway in the control of and maintained by it (the defendant), the duty to see that this stairway was kept in as good repair as it appeared to be in when the tenancy began; but the defendant’s obligation to the plaintiff as to the condition of the stairway was not greater than to the tenant in whose right the plaintiff was using it at the time of the accident. Domenicis v. Fleisher, 195 Mass. 281. There was evidence which would have warranted a finding that the hand rail had been allowed to become defective, that when the plaintiff took hold of it it gave way and caused her to fall to the bottom of the stairs; this would warrant a finding of negligence on the part of the defendant, for the consequences of which it would be responsible. Fitzsimmons v. Hale, 220 Mass. 461. Domenicis v. Fleisher, supra.

4. We are of opinion that there was not a variance between the allegations and the proof. Both counts of the declaration contain an allegation, in substance, that the plaintiff was injured by reason of the defendant’s negligence "in allowing and maintaining said halls, landings, and stairways to be in such unsafe and dangerous condition, and so dark and insufficiently lighted”; and although the presiding judge ruled that the defendant owed the plaintiff no duty to light the stairways and that the plaintiff could not recover upon that ground, still we are of opinion that upon the allegation *20that the stairways were negligently maintained in an unsafe and dangerous condition, the plaintiff could prove that the hand rail was in an unsafe and defective condition, by reason of which she was injured.

For the reasons already stated, the defendant’s first, second, third, fourth and ninth requests could not be given.

We are of opinion that the case was properly submitted to the jury, and that the entry must be

Exceptions overruled.