Home THOMAS J. REY & others vs. RICHARD K. BROWN.

4 Mass. App. Ct. 860

December 8, 1976

This proceeding in the Superior Court "is brought to enforce rights under, and th[at] Court's jurisdiction is invoked under, [G. L.] Ch. 211, Sec. 40." In the amended "complaint" it is "request[ed], under [G. L.] Chapter 221, Sec. 40, that . . . Brown be removed from the Bar of the Courts of Massachusetts for deceit, malpractice, and gross misconduct . . .", that "a jury be empanelled to determine general and special damages to the plaintiffs" and that "an attorney be designated by the Court to conduct the proceedings . . . ." We do not disturb the judgment of the Superior Court dismissing the proceeding. Brown has been removed from the office of attorney and that aspect of the proceeding is moot. The provision of G. L. c. 221, Section 40, that an attorney who is removed "shall also be liable in damages to the person injured thereby, and to such other punishment as may be provided by law" does no more than make clear that the removal of an attorney does not exempt him from civil or criminal liability. See Randall, petitioner, 11 Allen 473 , 480 (1865). Proceedings under G. L. c. 221, Section 40, are not generally appropriate as a vehicle for the collection of damages by private parties. Goss Printing Press Co. v. Todd, 202 Mass. 185 , 188 (1909). Matter of Keenan, 313 Mass. 186 , 213 (1943). Read as a whole, the amended "complaint" appears to be an information alleging misconduct of an attorney with a view to disciplinary proceedings rather than a complaint purporting to commence a civil action pursuant to Rule 3. Mass.R.Civ.P., 365 Mass. 733 (1974). Such proceedings are excluded from those made directly subject to the Massachusetts Rules of Civil Procedure. See Mass.R.Civ.P. 81(a) (3), 365 Mass. 841 (1974). One who brings such disciplinary proceedings does not have "any rights as to them." Boston Bar Assn. v. Casey, 211 Mass. 187 , 192 (1912). (We intend no intimation as to the relationship between G. L. c. 221, Section 40, and Supreme Judicial Court Rule 4:01, "Bar Discipline," as amended, 370 Mass. 915 [1976].)

Judgment affirmed.

Home ALICE V. BARRY vs. BOSTON HOUSING AUTHORITY & another; CONSOLIDATED ELEVATOR COMPANY, third-party defendant.

4 Mass. App. Ct. 860

December 8, 1976

1. There was evidence to the effect that the elevators in the authority's building functioned properly at the start of the plaintiff's tenancy in April, 1969; that sometime early in 1970 the elevators developed a sporadically occurring "jumping problem"; that the "jumping problem" was the cause of the plaintiff's fall; and that the existence of the "jumping problem" had been reported to the authority's maintenance man in the building on many occasions between early 1970 and the time of the plaintiff's fall on September 5, 1970. The duration of the condition (which the jury could reasonably infer was a continuing

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defect left unrepaired even though the elevator's malfunction was sporadic) and the fact that it had been reported to the authority justified an inference that the authority had failed to use reasonable care to maintain the elevators in the same condition they were in, or appeared to be in, at the inception of the plaintiff's tenancy and served to distinguish this case from Bernstein v. Highland Associates of Worcester, Inc. 1 Mass. App. Ct. 132 (1973). The judge properly denied the authority's motion for a directed verdict in its favor. 2. The judge was likewise correct in denying the authority's fourth requested instruction and its motion for judgment against the third-party defendant notwithstanding the verdict. Despite the breadth of the clause in the repair contract which required the third-party defendant to "provide . . . a complete elevator maintenance service . . . adequate to insure continuous first class, smooth and quiet operation," the contract read as a whole did not make the third-party defendant an insurer of perfect operation but only imposed on it the duty to "use all reasonable care to maintain the elevators in proper, safe operating condition" and to furnish all the labor and materials necessary for that purpose. Its duty to make all needed repairs was not absolute; implicitly it was restricted to malfunctions which had been reported to it or which it should have discovered, neither of which was required to be found on the evidence in this case. Similarly, the indemnity clause did not cover all liabilities arising from elevator malfunctions but only those "arising or resulting from the work provided for or performed under the [c]ontract . . . or from any act, omission or negligence" of the third-party defendant. The word "omission" in this context plainly meant an omission to do an act which the contract required and did not include a failure to repair a malfunction which the jury could find had not been reported to the third-party defendant and which they were not required to find it should have discovered.

Judgments affirmed.