Donahue v. M. O'Keefe, Inc.

, Carroll, J. The plaintiff was injured on East Ninth Street, South Boston, January 17, 1923. The injuries were caused by falling on an alleged artificial accumulation of ice upon the sidewalk, resulting from a waterspout emptying water from the roof of the building upon the sidewalk. The three actions were tried together. William Lynch, the owner of the premises, has since died, and the executors of his [38] will are the defendants in one of the actions. In that case a verdict for the defendants was ordered. Lynch let the store on the first floor of the premises to John A. and Mary J. McDonnell, by a written lease for the term of'five years from June 1, 1918, the lessees agreeing “to do all inside repairs, to keep the sidewalks in front of said premises free from snow and ice.” In the action against McDonnell the jury found for the defendant. In November, 1920, John A. McDonnell orally sublet the store to the defendant M. O’Keefe, Incorporated, as a tenant at will. McDonnell testified that he told the superintendent of the O’Keefe company that it “could have the store ... if Mr. Lynch would accept them as a tenant”; that the superintendent after he had read the lease from Lynch to McDonnell accepted its terms and agreed to “take it clean off my hands altogether”; that he told the superintendent he would have to do everything that was in that lease; that he had “to pay the water rates and keep the sidewalk clean”; that Lynch agreed to' accept the O’Keefe company as tenant. M. O’Keefe, Incorporated, took possession of the store and was in occupation of it when the plaintiff was injured. In the action against M. O’Keefe, Incorporated, the jury found for the plaintiff in the sum of $3,000. In the action against the executors of the will of William Lynch, and in the action against McDonnell, the plaintiff excepted. In the action against M. O’Keefe, Incorporated, the defendant excepted. We will first consider the exceptions in the case against the executors of William Lynch. It appeared that the building in question was three stories in height. Lynch was the owner and occupied the second floor. The tenant of the top floor was one Horgan. Lynch gave permission to McDonnell to allow the O’Keefe corporation to occupy the store, but McDonnell continued to pay the rent to Lynch, according to the lease. The water spout connected with the gutter, which drained the roof, was on the side of the building when the lease was executed. The spout extended from the side of the building and was broken off two or three feet from the sidewalk, so that the water from the spout [39] emptied directly onto the sidewalk adjacent to the premises on East Ninth Street. There was evidence that there was snow and ice on the sidewalk'' underneath the water spout ”; “that the snow and ice had not been removed from the sidewalk; that the ice was kind of glory ice, hilly and cone-shaped, going along for about two or three feet out from near the bottom of the conductor toward the curbstones.” In the absence of an agreement on the part of the lessee of the store to keep the sidewalk free from ice and snow, Lynch would be liable. He owned the building, the spout was a continuing nuisance, and a source of danger to travellers upon the highway. Maloney v. Hayes, 206 Mass. 1. The executors contend, because of the provision in the lease to the McDonnells that the lessees were to keep the sidewalk free from snow and ice, that the lessor cannot be held for the plaintiff’s injury. They rely on Cerchione v. Hunnewell, 215 Mass. 588, Wixon v. Bruce, 187 Mass. 232, Coman v. Alles, 198 Mass. 99. In the first of these cases, it was held that when there is a transfer of possession to a tenant, under a lease by which he is given the right to make alterations and even to replace the existing structures and agrees to save the lessor harmless from damages because of any nuisance, and especially from unremoved snow and ice, the landlord was not liable. In Wixon v. Bruce, the liability of the landlord was not involved. The only question was the liability of the tenants who had covenanted with the landlord to save him harmless from any claim for damages arising from neglect in removing snow and ice from the sidewalk. In Coman v. Alies the entire premises were held by the occupant under a lease providing that the lessor was to be saved harmless from damages caused by neglect in removing snow and ice from the sidewalk. In the case at bar Lynch retained control of the water spout; see Brewer v. Farnam, 208 Mass. 448; he merely leased the store, and while the tenant agreed to remove the snow and ice from the sidewalk, the landlord continued to occupy a part of the premises, the roof and the conductors were in his possession and he might be held to have contemplated that the spout should continue to discharge water upon the sidewalk. See Follins v. Dill, 221 [40] Mass. 93; Gilland v. Maynes, 216 Mass. 581; the fact that the tenant also may be responsible for the plaintiff’s injury does not excuse the landlord. A different case for the executors would be presented if the control of the entire premises had passed from the landlord to the tenant. Where a part of the premises is occupied by the landlord, he controlling the nuisance, the tenant having no right to remove the spout, and the tenant merely agrees to remove the snow and ice from the sidewalk, the landlord is not exempt from liability. Cases where the entire premises are leased and are under the control of the tenant, he agreeing to save the landlord harmless from damages from snow and ice not removed, are not applicable. The plaintiff’s exceptions in the action against the executors of the will of Lynch are sustained. In Donahue v. M. O’Keefe, Incorporated, there was evidence that the defendant orally agreed with the original lessee to take over the store upon the conditions contained in a written lease, and agreed to keep the sidewalk free of snow and ice. The tenant assumed the duty of caring for the sidewalk and removing the snow and ice. For its neglect it is liable. As was said in Quinn v. Crimmings, 171 Mass. 255, 256, “ . . . examples of liability to the public being affected by private arrangements are not unknown.” The O’Keefe corporation was a tenant of a portion of the building; its agreement was in effect to keep the sidewalk safe for travel, so far as snow and ice were concerned. This agreement gave the corporation control over the sidewalk, and brings the case within Wixon v. Bruce, supra. The alleged agreement between the O’Keefe corporation and McDonnell was made with one O’Hare, an agent of the corporation, who it contended was merely an investigator with no authority to make the special agreement to remove the snow and ice. In all the negotiations between McDonnell and the O’Keefe corporation O’Hare represented the corporation. Notwithstanding the limitations of O’Hare’s authority claimed by the O’Keefe corporation, the jury could find he was held out by it as having authority to hire the store and to hire it under the conditions testified to by McDonnell. See McKinney v. Boston & Maine Railroad, 217 Mass. 274, [41] 276; Johnson v. New York, New Haven & Hartford Railroad, 217 Mass. 203; Danforth v. Chandler, 237 Mass. 518, 522. Ferran v. Boston Elevated Railway, 249 Mass. 212, is not in conflict. We find no error in the refusal of the presiding judge to give the requests of M. O’Keefe, Incorporated, or in the instructions given. In this case the exceptions are overruled. The plaintiff agreed that if the exceptions were overruled in the action against M. O’Keefe, Incorporated, the exceptions in the action against McDonnell were also to be overruled. In the action against the executors of the will of William Lynch, the exceptions are sustained. In the action against McDonnell the exceptions are overruled. In the action against M. O’Keefe, Incorporated, the exceptions are overruled. So ordered.