BRUNO BORONSKIS & another vs. THE TEXAS COMPANY.

SPALDING, J. In this action of tort the jury returned a verdict for the plaintiffs, and the case comes here on the defendant's exceptions.

There was evidence of the following: The plaintiffs owned and operated a diner in Stoughton which was adjacent to a gasoline station owned by the defendant and leased to one Zumas who ran the station. The lease provided that the repairs and maintenance of the station were the responsibility of the lessee. [Note 1] However, during the period of the lease (about fourteen years) the defendant had voluntarily attended to virtually all of the repairs without any charge to Zumas. An independent contractor employed by the defendant testified that he tested the gasoline tanks for leaks "only at the order of the [defendant]" and that he would not test them at the request of Zumas.

Bruno Boronskis (hereinafter called the plaintiff) testified that he first smelled gasoline in his diner early in July, 1952. Early in December he complained of this to Zumas and the defendant's local agent. On December 18, 1952, the plaintiff, through his attorney, sent a letter to the defendant stating that he had had tests made by the gas company and the tests revealed that there were no leaks in the gas pipes; and that the men making the tests "believed

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there was a gasoline leakage on the premises next door." The letter concluded: "These odors are persisting and I request that you make an immediate examination and inspection of your premises and equipment on which the Texaco Station is being run to check on gasoline leaks." The plaintiff received no reply to this letter. On March 18, 1953, the plaintiff through his attorney again wrote to the defendant stating that a dangerous condition (leaking of gasoline) existed at the gasoline station which was seriously affecting the plaintiff. The defendant was requested to "do something at once."

On March 31, 1953, gasoline was found in the cellar of the plaintiff's diner, which had seeped up through the floor. Upon order of the fire department the diner ceased operations. That the gasoline that entered the diner came from the adjacent station and that it caused substantial damage to the plaintiff's property is not disputed.

A broken flange on one of the gasoline tanks, from which the gasoline had escaped, was subsequently discovered. According to one Connors, who on March 31 was hired by the defendant to investigate and to remedy the condition at the gasoline station, one of the tanks had a broken flange and there was a torn place which was rusty. "The tear he saw had existed more than a week or a month, he would say about a year." An air pressure test was applied by Connors to discover the leak. If such a test "had been put on the tank with the broken flange at any time after the flange broke the test would have shown that there was a leak in the tank."

The defendant's exceptions arise out of the denial of its motion for a directed verdict and the refusal of the judge to grant certain requests for instructions. The question presented by these exceptions is the same and, as stated by the defendant, is this: "[C]an a damaged third person hold the owner of leased property liable for the condition of the property where it has been leased to another, apparently in good condition (where the condition arose after the lease) by proof of continual maintenance of the property by the lessor?"

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The defendant argues that the lease, which is neither a sham nor against public policy, is "invulnerable to attack by third persons" and cannot be contradicted by parol evidence. This contention is without merit. It is settled that the "rule that parol evidence is not admissible to vary the terms of a written contract, does not apply to third persons who are not parties to the contract." Wilson v. Mulloney, 185 Mass. 430, 433. Maionica v. Piscopo, 217 Mass. 324, 328. Guaranty Security Corp. v. Eastern S.S. Co. 241 Mass. 120, 123. Kerwin v. Donaghy, 317 Mass. 559, 566. The plaintiff, therefore, who was not a party to the lease between Zumas and the defendant, was not bound by its terms. In essence, the question was one of control, for responsibility is an incident of control. Responsibility and control rested either on Zumas or the defendant. It was, therefore, open to the plaintiff to show, despite the terms of the lease, what the actual situation was between Zumas and the defendant with respect to control of the instrumentality (the defective tank) causing the damage. There was ample evidence that the defendant retained control of it, as evidenced by the fact that it had procured and paid for all repairs (including the replacing of the old tanks with new tanks after the plaintiff's property was damaged) to the gasoline station from the inception of the lease. Maionica v. Piscopo, 217 Mass. 324, 328. Laskowski v. Manning, 325 Mass. 393, 397-398. Properly no contention has been made that a finding of negligence on the part of the defendant was not warranted.

Exceptions overruled.