HENRY H. TUTTLE COMPANY vs. JOSEPH B. PHIPPS.

TORT , by a corporation, which was a retail dealer in boots and shoes and occupied a store and a part of the basement in the building numbered 159 on Tremont Street in Boston under a lease in writing from one James J. Grace, who was the lessee of the entire building, against an assignee from Grace, who held all Grace's rights and had assumed all his duties in the management of the building, for damage to goods and other property of the plaintiff on August 6, 1911, by reason of the alleged negligence of an engineer employed by the defendant in the care and management of a steam engine and boiler in the basement of the building which were used in operating the elevator in the building and also were connected with the radiators and pipes that were used for heating the building in winter, whereby water was allowed to escape through the boiler into the pipes connected with the radiators in the upper part of the building and thence through cocks and valves, which had been left open by other tenants, down upon the portion of the building occupied by the plaintiff. Writ dated September 8, 1911.

Page 475

In the Superior Court the case was tried before White, J. The covenants of the plaintiff as lessee contained in its lease from Grace as lessor, which followed a provision for the payment of $12,500 a year as rent, were as follows:

"And the said Lessee for itself and its representatives and assigns hereby covenants with the Lessor and his heirs, and assigns, that during said term, and during such further period as it or any other person or persons claiming under it, shall hold the said premises, or any part thereof, it, the said Lessee, and its representatives and assigns, will keep, always at its own expense, the entire demised premises, both inside and outside, including the roof over store front, as well as the drains, pipes, faucets water fixtures, gas and electric fixtures, electric wiring, window and other glass belonging to the demised premises, but not omitting other parts and appurtenances thereto belonging, although not named, in good and proper order and repair, damage by fire, or other unavoidable casualty only excepted, and will save the Lessor, and his representatives, heirs and assigns, harmless and indemnified from any payment or liability for loss or injury by water, gas, electricity, or otherwise, to any merchandise, property or person, in or on the demised premises, and that it, the said Lessee, will save the Lessor, his representatives, heirs and assigns, harmless and indemnified from and against all loss, liability or expense arising from any accident to machinery, or by reason of anything connected with any stairway, hatchway, elevator, gas, water, steam, or other pipes, or from the use or abuse of water, steam, gas, electricity, or otherwise, or by reason of the accumulation of any snow or ice in the gutter or upon the roof over the front or rear of the store, and belonging thereto, or upon the sidewalks adjoining the same; and in general that it will assume the entire care of and responsibility for the demised premises, including the sidewalks adjacent thereto, and will hold the Lessor and his representatives, heirs and assigns harmless and indemnified against any and all loss, liability, or expense in connection with the said demised premises or sidewalks, or occasion to the said Lessor in respect of loss, injury, or damage to any person or property during the holding or occupation of the said Lessee and its representatives and assigns. . . ."

At the close of the evidence the judge, being of the opinion

Page 476

that the plaintiff was precluded from recovering by reason of the terms of the lease under which it occupied the premises, ordered a verdict for the defendant, and with the consent of both parties reported the case for determination by this court, upon the stipulation that, if the ordering of the verdict was right, judgment should be entered upon the verdict; and that, if it was wrong, and there was evidence upon which the plaintiff might have recovered, judgment should be entered for the plaintiff in the sum of $225 and costs.

J. B. Studley, (J. J. Kaplan with him,) for the plaintiff.

U. D. Garfield, for the defendant, was stopped by the court.

LORING, J. This case is concluded by the decision in Fera v. Child, 115 Mass. 32. No distinction should be made between the agreement in the lease in that case and that in the lease in the case at bar. That decision should not be overruled. The distinction between Fera v. Child, ubi supra, and Smith v. Faxon, 156 Mass. 589, is fully explained in the latter case.

Judgment for the defendant.