Wierzbicki v. Thacher

Pierce, J. This is an action of tort for personal injuries sustained by the plaintiff’s intestate, while on a private stairway in the premises owned by the defendants and occupied by one Lanski as a tenant at will. At the close of the evidence, the defendants presented a motion for a directed verdict. The motion was allowed and a verdict was directed for the defendants. The case is before this court on the plaintiff’s exceptions to that ruling and direction. The material facts shown by the bill of exceptions which are most favorable to the plaintiff are as follows: On November 3, 1925, the day of the accident to the plaintiff, one Lanski, a tailor, was in occupation of all the rooms on the second and third floors of a three-story building, as a tenant at will, and" had occupied those premises as such a tenant since 1916. The life tenancy of the landlord of Lanski terminated in August, 1925, and subsequent to that time Lanski continued to occupy the same premises as a tenant at will of the defendants, who were the remaindermen, upon the same terms as he had occupied them under the life tenant. During the entire time of his occupancy of the premises he paid the rent to one Harwood, who had charge of them as a representative of the tenant for life and after the termination of the life tenancy had charge of the property as the representative of the remaindermen. Two or three years prior to November 3, 1925, Lanski brought the attention of Harwood to the condition of the steps [348] leading from the tailor shop to the street entry, and about a month prior to the accident brought his attention to a step where the plaintiff was alleged to have fallen. The-step shown “ was split and cracked ”; the crack ran almost the entire length of the step; the tread was about twelve inches wide, and when stepped on would tip. Lanski told Harwood that the step -was in need of repair, that he would have' to move because of its dangerous condition, and Harwood said, “ All right, I will send somebody to fix it up.” Later, about two weeks before the accident, a man came and fixed it up by nailing the broken step together. It “ was all right for a while, but about a week previous to the accident . . . the step once again became loose and . . . [Lanski] called ” the condition of it to Harwood’s attention. Harwood said he was going to put in a new step. The plaintiff fell on the step before any repairs on it.were made. On the above facts it is plain Lanski took the premises as he found them, and his landlord, the tenant for life, was under no obligation to repair them. Kearines v. Cullen, 183 Mass. 298. Mackey v. Lonergan, 221 Mass. 296. During the tenancy under the life tenant or the defendants there was no new express agreement as to the terms of the tenancy; and no contract to make needed repairs, with or without notice of such need, could be implied from the mere fact that repair of the defective step was made so that “ it was all right for a while,” because of the statement of Lanski “ that he would have to move because of the dangerous condition of the step since somebody was liable to fall on it.” The plaintiff’s offer of proof that Lanski would testify “ that three or four years prior to December or November 3, 1925, he told Harwood that he was going to leave the premises because they were so out of repair,” and that Harwood said “ that if he would agree to the raise of the rent from $17, which he had paid, $17 per month, to $20 a month, and if Lanski would agree to pay the rent he would put the premises in good repair and if at any time thereafter repairs were needed if Lanski would call it to Har [349] wood’s attention that Harwood would make all necessary-repairs” was refused rightly because the offer did not go far enough to warrant a finding that the rent was raised to $20 a month because of the alleged agreement or that Lanski ever agreed to pay $20 a month. If it be assumed there was an agreement to repair, that repairs were needed, that repairs were not made negligently but that there was an omission to repair, the case presents a right of action for breach of contract and not for an action of tort. Tuttle v. George H. Gilbert Manuf. Co. 145 Mass. 169. Fiorntino v. Mason, 233 Mass. 451. The plaintiff’s rights sound in tort and on the facts here shown he had no right to be subrogated to the contracturai rights of Lanski, if Lanski had such, against the defendants to avoid circuity of action. See Lowell v. Spaulding, 4 Cush. 277. Exceptions overruled.