Fera v. Child

Morton, J. This is an action to recover damages for an injury to the goods of the plaintiff in the store leased by him of the defendant, caused by the bursting of the water pipes in a part of the building not included in the lease. The plaintiff’s lease contains the following provision: “ And it is also hereby understood and expressly agreed by the parties to this indenture, that all merchandise, furniture and property of every kind, which may be on the premises during the continuance of this lease, is to be at the sole risk and hazard of the lessee, and that if the whole or any part thereof shall be destroyed or damaged by fire, water or otherwise, or by the use or abuse of the Cochituate water, or by the leakage or bursting of water pipes, or in any other way or mom ner, no part of said loss or damage is to be charged to, or be borne by, the lessors in any case whatever.” The learned judge who presided at the trial ruled, that as the place where the pipe burst was not within the premises held by the plaintiff under his lease, the provision above quoted did not apply to damage caused by such bursting. We are of opinion that this ruling was erroneous. The language of the provision is very broad, and by its natural import throws upon the lessee the risk of loss or damage to his property, in the store, caused by the leakage or bursting of water pipes in any part of the building. [36] The clause immediately following this provides that the lessee shall “ keep whole and in good condition, all the window and other glass on the premises, and also the pipes, faucets and water fixtures ; ” and a prior clause provides that the lessee shall “ save the lessors and their representatives harmless from all loss or damage occasioned by the use, misuse or abuse of the Cochituate water or bursting of the pipes.” The two clauses last mentioned clearly refer to the water pipes and fixtures in the premises leased to the plaintiff, and sufficiently protect the lessor from any risk of damage by the bursting of such pipes. If the purpose of the provision we are considering was merely to exempt the lessor from liability for damage caused by the leakage or bursting of water pipes within the leased premises, it is entirely superfluous and useless. These considerations lead to the conclusion that it was the intention of the parties to this lease, to exempt the lessor from liability for. any loss or damage to the plaintiff’s property, which might be caused by the use or abuse of the Cochituate water, or by the leakage or bursting of the water pipes in any part of the building. The defendant contends that she would not be liable to the plaintiff if there had been no special agreement exempting her, but the view we have taken renders it unnecessary to consider this question. Exceptions sustained.