Franco v. Maker

Massachusetts Supreme Judicial Court

Franco v. Maker

111 N.E. 721, 223 Mass. 71

CourtMassachusetts Supreme Judicial Court

DecidedMarch 1, 1916

StatusPublished

Cited by1 cases

This text of 111 N.E. 721 (Franco v. Maker) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Franco v. Maker, 111 N.E. 721, 223 Mass. 71 (Mass. 1916).

Pincite

Opinion

Crosby, J.

The defendant was the owner of a two story house containing four tenements on each floor. The plaintiffs occupied the northerly tenement on the second floor. During a period of [72]*72very cold weather the water and sewer pipes in the house became frozen. The main sewer pipe was in the cellar and extended from the ground up to within eighteen inches of the floor joists of the first floor, and other sewer pipes leading to the various tenements were connected with it.

There was evidence that the plaintiffs had told'the defendant that unless the sewer pipes could be cleared of ice they would move the next day, and that “the defendant offered to do what he could to relieve the existing condition.”

There was also evidence to show that on the same evening that the plaintiffs had threatened to move the defendant and another tenant undertook to thaw out the sewer pipes in the cellar; that they wrapped burlap around the ends of two iron pipes, soaked the burlap in kerosene and, after setting fire to the burlap, held it close to the sewer pipe; that shortly afterwards the house was discovered to be on fire and by reason of the fire certain personal property of the plaintiffs was damaged. This action is brought to recover for the damages so sustained.

There was evidence from which the jury were warranted in finding that the plaintiffs impliedly agreed to remain as the defendant’s tenants if the defendant would thaw out the pipes. If so, the defendant’s undertaking was not gratuitous, but was for a valid consideration, and, having attempted to perform it, he was obliged to exercise reasonable care and skill, and if by negligence in doing the work, the property of the plaintiff was injured or destroyed, the defendant would be liable in damages.

There was ample evidence from which the jury would have been justified in finding that the house was set on fire by the defendant, or by his tenant who was assisting him, and that the tenant was acting under the direction and control of the defendant. The jury also might have found that the method adopted to thaw •the pipes was negligent in view of the fact that the end of the frozen sewer pipe where the lighted torch was applied was only eighteen inches from the wooden floor and timbers above it. The case was properly submitted to the jury, and the entry must be

Exceptions overruled.

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Crosby, J.

The defendant was the owner of a two story house containing four tenements on each floor. The plaintiffs occupied the northerly tenement on the second floor. During a period of [72]*72very cold weather the water and sewer pipes in the house became frozen. The main sewer pipe was in the cellar and extended from the ground up to within eighteen inches of the floor joists of the first floor, and other sewer pipes leading to the various tenements were connected with it.

There was evidence that the plaintiffs had told'the defendant that unless the sewer pipes could be cleared of ice they would move the next day, and that “the defendant offered to do what he could to relieve the existing condition.”

There was also evidence to show that on the same evening that the plaintiffs had threatened to move the defendant and another tenant undertook to thaw out the sewer pipes in the cellar; that they wrapped burlap around the ends of two iron pipes, soaked the burlap in kerosene and, after setting fire to the burlap, held it close to the sewer pipe; that shortly afterwards the house was discovered to be on fire and by reason of the fire certain personal property of the plaintiffs was damaged. This action is brought to recover for the damages so sustained.

There was evidence from which the jury were warranted in finding that the plaintiffs impliedly agreed to remain as the defendant’s tenants if the defendant would thaw out the pipes. If so, the defendant’s undertaking was not gratuitous, but was for a valid consideration, and, having attempted to perform it, he was obliged to exercise reasonable care and skill, and if by negligence in doing the work, the property of the plaintiff was injured or destroyed, the defendant would be liable in damages.

There was ample evidence from which the jury would have been justified in finding that the house was set on fire by the defendant, or by his tenant who was assisting him, and that the tenant was acting under the direction and control of the defendant. The jury also might have found that the method adopted to thaw •the pipes was negligent in view of the fact that the end of the frozen sewer pipe where the lighted torch was applied was only eighteen inches from the wooden floor and timbers above it. The case was properly submitted to the jury, and the entry must be

Exceptions overruled.

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Bluebook (online)

111 N.E. 721, 223 Mass. 71, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franco-v-maker-mass-1916.

Opinion

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