STEPHEN G. HYATT vs. ALVIN H. PHILLIPS.

PIERCE, J. This is an action to recover for damage to the household effects and other personal property of the plaintiff, while a tenant of the defendant, caused by the escape of steam in the plaintiff's apartment which was due to the alleged negligence of the defendant. The plaintiff's writ originally sounded in contract or tort, but at the trial the plaintiff amended his writ to sound in tort alone. The declaration reads as follows: "The plaintiff says that he is and on or about November 26, 1931, was, a tenant of the

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defendant occupying an apartment in the premises of the defendant located on Dickinson Street, Springfield, in said Hampden County; that on or about said November 26, because of the negligence of the defendant, a steam pipe in the apartment occupied by the plaintiff, which pipe was under the control of the defendant, leaked, causing steam and/or water to enter in his said apartment causing him great damage to his household goods, effects and other personal property." The defendant's answer consists of a general denial and an allegation of contributory negligence. At the close of the evidence the defendant moved for and the judge refused to order a verdict for the defendant. The defendant excepted. The plaintiff had a verdict, concerning the amount of which there is no controversy. The case is before this court on the defendant's exception duly saved.

The pertinent facts most favorable to the plaintiff, as shown by the record, in substance are as follows: In 1931, the plaintiff became a tenant at will of the defendant. With his wife, and no one else, he occupied an apartment consisting of three rooms and bath, on the second floor of the defendant's apartment house. The defendant was in control of the steam heating system, the pipes leading to the plaintiff's apartment, and the radiators therein, and, as landlord, was required to furnish heat to the plaintiff's apartment under the terms of the plaintiff's tenancy.

The heating plant maintained in the premises in question was operated by a janitor who lived on the premises. The supply pipe was connected with the radiator in the bedroom of the apartment occupied by the plaintiff by a valve, which was given to the jury on their retiring and was exhibited at the argument to this court. "This valve stands about seven inches in height. It consists of a round hollow piece of brass about three and one half inches in height with a threaded round opening one and one half inches in diameter at the bottom, designed for connection with a steam pipe coming up from a steam boiler. On one side of the valve and at right angles to the opening at the bottom is another opening

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of substantially the same size, designed for connection to a steam radiator. A stem about six inches in height with handle on top runs perpendicularly through an opening at the center of the top of this piece of brass. At the bottom of the stem and enclosed within the valve is a round disk about the size of the opening at the base. When the stem is lowered its full extent, the disk is designed to close against the seat of the valve and thus prevent steam entering from the steam pipe. When the stem is raised the valve is open and thus steam is permitted to enter and pass out through the side opening into the radiator, assuming a radiator is connected, and if no radiator is connected, the steam would pass out into the room. The stem works on a screw arrangement by turning the handle. A jam nut surrounds the stem under which is usually a packing that prevents steam escaping around the stem when valve is open."

In the spring of 1931, the defendant's janitor, at the request of the plaintiff, removed a radiator from the bedroom of the plaintiff's apartment, leaving affixed to the supply pipe the hand shut-off valve above described. The plaintiff was present when the radiator was removed and suggested that the janitor take the valve off; this the janitor attempted to do but failed to accomplish for lack of an additional needed wrench. There is no evidence in the record that the janitor removed the valve or that before the escape of steam on November 26, 1931, he inspected the radiators and valves in the plaintiff's apartment.

It appears that steam was turned on in the fall about a month before November 26, 1931, and prior to this date neither the plaintiff nor his wife noticed any water or steam around the floor near this valve or noticed any leaking anywhere. In this regard the janitor, who was called as a witness by the plaintiff, testified, "I had no complaints as to escaping steam or water previous to this date [date of accident] from that valve" (in plaintiff's bedroom) and "I had never seen any water or steam about the radiator previous to that date."

On November 26, 1931, the plaintiff left his apartment

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early in the morning. His wife left it between ten and ten-thirty in the morning and at that time had not noticed any leaking or heard any steam escaping from the valve. Neither the plaintiff nor his wife touched the valve after the radiator was removed or knew of anyone who had touched it. When the plaintiff returned at 11:30 A.M. he found the apartment filled with steam so dense that he could not enter for a few minutes. After he was able to enter he traced the source of this water and steam to the valve in the bedroom. A baker came up from the apartment directly under the plaintiff's apartment with tools and wanted to know where the water was coming from. He applied the wrench to the nut, and tightened it. The nut was very loose. After the nut was tightened the steam stopped passing through. When the plaintiff came home he found the handle on the valve was loose, as was also the nut; he turned it down slightly, "maybe one or one and a half turns" but could not say definitely as to complete revolutions of the handle.

The defendant does not contend that the janitor had not authority to remove the radiator, or that he had not authority to reinstall the radiator, as he did after the escape of the steam. His contention is that on the facts he owed no duty of keeping the pipe and valve in repair because the act of removing the radiator was a gratuitous act, and the failure of the defendant to make sure that the valve was closed and the nut left tight after the separation of valve and radiator was an act of nonfeasance as distinguished from misfeasance of the defendant. Gill v. Middleton, 105 Mass. 477. Tuttle v. George H. Gilbert Manuf. Co. 145 Mass. 169, 175. McKeon v. Cutter, 156 Mass. 296. The plaintiff does not rest his case upon the distinction between misfeasance of negligence and nonfeasance as negligence in determining whether an action of tort will lie, but rests it upon the fact that the jury might warrantably find on the evidence that the janitor was reasonably bound to know that it was not improbable that the stem of the valve would be raised somewhat and the jam nut and packing loosened; and, finding that such was the fact, the jury could

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warrantably find that the janitor should have anticipated such condition and that it was his duty before turning on the steam to examine the valve in the plaintiff's bedroom.

Exceptions overruled.