Home WILLIAM W. HEALEY & another vs. SIDNEY BEDRICK.

352 Mass. 772

April 4, 1967

Following the return of verdicts for the plaintiffs, husband and wife, the judge entered verdicts for the defendant under leave reserved, subject to the plaintiffs' exception. The evidence was as follows: The accident happened in a three-story wooden building owned by the defendant; it contained six apartments. Between the landing of the first floor to the landing of the second floor were fourteen wooden stairs. Each stair was "about 38 inches long, 7 inches high and three-quarters of an inch thick." There was "also a handrail of wood the entire distance from the first to the second floor on the right side descending." This was a common stairway which, as the defendant admitted, he had a duty to "care for and/or inspect." The plaintiffs were tenants at will of a second floor apartment, having become such in March of 1961. At that time the premises had been recently renovated and the stairway was in "perfect" condition. Six months after the tenancy began another tenant in moving out caused a refrigerator to be "slid down" the front stairs. Afterwards the wife observed that the stairs were "all worn out on the edge and there was a piece out as big as a quarter on the edge . . . [on] the second step from the top." On the morning of May 15, 1962, while she was at the bottom of the stairs, she observed her husband, aged seventy-eight, at the top attempting to descend with his hand on the railing. His "foot got caught in that hole in the second step from the top and [he] tumbled over on to me." The husband testified that his foot went into "a hole or something . . . in the second stair." Several photographs showing the stairs as they were at the time of the accident were introduced by the plaintiffs and are before us. The defendant's duty was "not to keep the . . . [stairway] in as good a condition as that in which it was or appeared to be at the time of the letting, but rather to use reasonable care to do so." Sneckner v. Feingold, 314 Mass. 613 , 614. Considering the evidence summarized above, including the photographs, we are of opinion that there was no breach of that duty on the part of the defendant. The judge did not err in entering verdicts for the defendant under leave reserved.

Exceptions overruled.

Home DONALD E. VANCE & another vs. CITY OF HAVERHILL & others.

352 Mass. 772

April 4, 1967

This is a bill under G. L. c. 149, Section 29, to enforce a claim of Universal Bleacher Sales Company, a limited partnership, for the furnishing of bleachers for a new high school in Haverhill. Named as defendants were the general contractor, its surety, a subcontractor, and the city of Haverhill. The general contractor and the surety appeal from a final decree in favor of the partnership. The defendants contend that

Page 773

the sworn statement of claim was not filed by the "claimant" as provided in Section 29. The proposal was originally made to the subcontractor by the partnership but on a form headed "Universal Bleacher Company," a corporation controlled by the same parties in control of the partnership. A purchase order from the subcontractor went forward to the corporation which then manufactured and delivered the bleachers. The partnership filed the claim seasonably with the city clerk. Following the filing of the statement, and prior to the bringing of the bill, the corporation assigned all its rights in the matter to the partnership. The trial judge found "[f]or all practical purposes" the partnership and the corporation to be "two units of one operation." There was no error. Neither the corporation nor the partnership has been paid more than a token amount for the bleachers. Section 29 should be given sufficient breadth in construction to achieve its purpose in a case such as this where notice was ample. There was little or no danger of confusion arising through the interrelationship of the corporation and the partnership which did business under closely similar names. See Dolben v. Duncan Constr. Co. 276 Mass. 242 , 252-253; Barry v. Duffin, 290 Mass. 398 , 401-402.

Decree affirmed.